*627Justice Souter

announced the judgment of the Court and delivered the opinion of the Court with respect to Part III, and an opinion with respect to Parts I and II, in which The Chief Justice, Justice O’Connor, and Justice Kennedy join.

This case presents two questions: whether a first-degree murder conviction under jury instructions that did not require agreement on whether the defendant was guilty of premeditated murder or felony murder is unconstitutional; and whether the principle recognized in Beck v. Alabama, 447 U. S. 625 (1980), entitles a defendant to instructions on all offenses that are lesser than, and included within, a capital offense as charged. We answer no to each.

I — I

On August 9, 1978, a highway worker discovered the badly decomposed body of 74-year-old Lorimer Grove in the underbrush off U. S. Highway 89, about nine miles south of Prescott, Arizona. There was a rope around his neck, and a coroner determined that he had been strangled to death. The victim had left his home in Bisbee, Arizona, eight days earlier, driving his new Cadillac and towing a camper.

*628On September 3, 1978, petitioner, driving Grove’s Cadillac, was stopped for speeding by the New York State Police. He told the officers that he was transporting the car for an elderly friend named Larry Grove. Later that month, petitioner was arrested in Salt Lake City, Utah, for a parole violation and possession of a stolen vehicle. A search of the Cadillac, which petitioner was still driving, revealed personal belongings of Grove’s, and petitioner’s wallet contained two of Grove’s credit cards, which petitioner had begun using on August 2, 1978. Other items belonging to Grove were discovered in a rental car which had been found abandoned off Highway 89 on August 3, 1978; petitioner had rented the car the previous December and never returned it. While in custody in Salt Lake City, petitioner told a visitor that he would “ ‘deny being in any area of Arizona or the State of Arizona, particularly Tempe, Arizona and Prescott, Arizona.’” 163 Ariz. 411, 414, 788 P. 2d 1162, 1165 (1989).

A Yavapai County, Arizona, grand jury indicted petitioner on one count of first-degree murder, and petitioner was extradited to stand trial. The Arizona statute applicable to petitioner’s case defined first-degree murder as “murder which is . . . wilful, deliberate or premeditated ... or which is committed ... in the perpetration of, or attempt to perpetrate, . . . robbery.” Ariz. Rev. Stat. Ann. § 13-452 (Supp. 1973).1 Petitioner was convicted and sentenced to death, *629but his conviction was set aside on collateral review. 142 Ariz. 619, 691 P. 2d 710 (1984).

At petitioner’s retrial, the prosecutor advanced theories of both premeditated murder and felony murder, against which petitioner claimed that the circumstantial evidence proved at most that he was a thief, not a murderer. The court instructed the jury that “[f ]irst degree murder is murder which is the result of premeditation. . . . Murder which is committed in the attempt to commit robbery is also first degree murder.” App. 26. The court also instructed that “[a]ll 12 of you must agree on a verdict. All 12 of you must agree whether the verdict is guilty or not guilty.” Id., at 27.

The defense requested a jury instruction on theft as a lesser included offense. The court refused, but did instruct the jurors on the offense of second-degree murder, and gave them three forms for reporting a verdict: guilty of first-degree murder; guilty of second-degree murder; and not guilty. The jury convicted petitioner of first-degree murder, and, after a further hearing, the judge sentenced petitioner to death.

The Arizona Supreme Court affirmed. 163 Ariz. 411, 788 P. 2d 1162 (1989). The court rejected petitioner’s contention that the trial court erred in not requiring the jury to agree on a single theory of first-degree murder, explaining:

“In Arizona, first degree murder is only one crime regardless whether it occurs as a premeditated murder or a felony murder. Although a defendant is entitled to a unanimous jury verdict on whether the criminal act charged has been committed, the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed.’” Id., at 417; 788 P. 2d, at 1168 (quoting State v. Encinas, 132 Ariz. 493, 496, 647 P. 2d 624, 627 (1982)) (citations omitted).

The court also rejected petitioner’s argument that Beck v. Alabama, supra, required an instruction on the lesser in-*630eluded offense of robbery. 163 Ariz., at 416-417, 788 P. 2d, at 1167-1168.

We granted certiorari. 498 U. S. 894 (1990).

1 — I 1 — I

Petitioner’s first contention is that his conviction under instructions that did not require the jury to agree on one of the alternative theories of premeditated and felony murder is unconstitutional.2 He urges us to decide this case by holding that the Sixth, Eighth, and Fourteenth Amendments require a unanimous jury in state capital cases, as distinct from those where lesser penalties are imposed. See Johnson v. Louisiana, 406 U. S. 356 (1972); Apodaca v. Oregon, 406 U. S. 404 (1972). We decline to do so, however, because the suggested reasoning would beg the question raised. Even assuming a requirement of jury unanimity arguendo, that assumption would fail to address the issue of what the jury must be unanimous about. Petitioner’s jury was unanimous in deciding that the State had proved what, under state law, it had to prove: that petitioner murdered either with premeditation or in the course of committing a robbery. The question still remains whether it was constitutionally acceptable to permit the jurors to reach one verdict based on any combination of the alternative findings. If it was, then the jury was unanimous in reaching the verdict, and petitioner’s proposed unanimity rule would not help him. If it was not, and the jurors may not combine findings of premeditated and felony murder, then petitioner’s conviction will fall even without his proposed rule, because the instructions allowed for the forbidden combination.

In other words, petitioner’s real challenge is to Arizona’s characterization of first-degree murder as a single crime as to *631which a verdict need not be limited to any one statutory alternative, as against which he argues that premeditated murder and felony murder are separate crimes as to which the jury must return separate verdicts. The issue in this case, then, is one of the permissible limits in defining criminal conduct, as reflected in the instructions to jurors applying the definitions, not one of jury unanimity.

A

A way of framing the issue is suggested by analogy. Oür cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed. In Andersen v. United States, 170 U. S. 481 (1898), for example, we sustained a murder conviction against the challenge that the indictment on which the verdict was returned was duplicitous in charging that death occurred through both shooting and drowning. In holding that “the Government was not required to make the charge in the alternative,” id., at 504, we explained that it was immaterial whether death was caused by one means or the other. Cf. Borum v. United States, 284 U. S. 596 (1932) (upholding the murder conviction of three codefendants under a count that failed to specify which of the three did the actual killing); St. Clair v. United States, 154 U. S. 134, 145 (1894). This fundamental proposition is embodied in Federal Rule of Criminal Procedure 7(c)(1), which provides that “[i]t may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means.”

We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone. In these cases, as in litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the *632bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” McKoy v. North Carolina, 494 U. S. 433, 449 (1990) (Blackmun, J., concurring) (footnotes omitted).

The alternatives in the cases cited went, of course, to possibilities for proving the requisite actus reus, while the present case involves a general verdict predicated on the possibility of combining findings of what can best be described as alternative mental states, the one being premeditation, the other the intent required for murder combined with the commission of an independently culpable felony. See State v. Serna, 69 Ariz. 181, 188, 211 P. 2d 455, 459 (1949) (in Arizona, the attempt to commit a robbery is “the legal equivalent of . . . deliberation, premeditation, and design”).3 We see no reason, however, why the rule that the jury need not agree as to mere means of satisfying the actus reus element of an offense should not apply equally to alternative means of satisfying the element of mens rea.

That is not to say, however, that the Due Process Clause places no limits on a State’s capacity to define different courses of conduct, or states of mind, as merely alternative means of committing a single offense, thereby permitting a defendant’s conviction without jury agreement as to which course or state actually occurred. The axiomatic requirement of due process that a statute may not forbid conduct in terms so vague that people of common intelligence would be relegated to differing guesses about its meaning, see Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) (citing Connally v. General Construction Co., 269 U. S. 385, 391 (1926)), carries the practical consequence that a defendant charged under a valid statute will be in a position to understand with some specificity the legal basis of the charge *633against him. Thus it is an assumption of our system of criminal justice “ ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’” Speiser v. Randall, 357 U. S. 513, 523 (1958) (quoting Snyder v. Massachusetts, 291 U. S. 97, 105 (1934)), that no person may be punished criminally save upon proof of some specific illegal conduct. Just as the requisite specificity of the charge may not be compromised by the joining of separate offenses, see United States v. UCO Oil Co., 546 F. 2d 833 (CA9 1976), cert. denied, 430 U. S. 966 (1977), nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of “Crime” so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction.4

To say, however, that there are limits on a State’s authority to decide what facts are indispensable to proof of a given offense is simply to raise the problem of describing the point at which differences between means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating what the Constitution requires to be treated as separate offenses. See generally Note, 91 Harv. L. Rev. 499, 501-502 (1977). Although we have never before attempted to define what constitutes an immaterial difference as to mere means and what constitutes a material difference requiring separate theories of crime to be treated as separate offenses subject to separate jury findings, there is a body of law in the federal circuits, deriving primarily from the decision of the Fifth Cir*634cuit in United States v. Gipson, 553 F. 2d 453 (1977) (Wisdom, J.), that addresses this problem.

The defendant in Gipson was charged with violating 18 U. S. C. § 2313 (1982 ed.), which prohibited knowingly “receiv[ing], concealing], storing], bartering], selling] or disposing] of” any stolen vehicle or aircraft moving in interstate commerce, and was convicted after the trial judge charged the jury that it need not agree on which of the enumerated acts the defendant had committed. The Fifth Circuit reversed, reasoning that the defendant’s right to “jury consensus as to [his] course of action”5 was violated by the joinder in a single count of “two distinct conceptual groupings,” receiving, concealing, and storing forming the first grouping (referred to by the court as “housing”), and bartering, selling, and disposing (“marketing”) constituting the second. Id., at 456-459. In that court’s view, the acts within a conceptual grouping are sufficiently similar to obviate the need for jurors to agree about which of them was committed, whereas the acts in distinct conceptual groupings are so unrelated that the jury must decide separately as to each grouping. A number of lower courts have adopted the standard of “distinct conceptual groupings” as the appropriate test. E. g., United States v. Peterson, 768 F. 2d 64 (CA2) (Friendly, J.), cert. denied, 474 U. S. 923 (1985); United States v. Duncan, 850 F. 2d 1104, 1113 (CA6 1988), cert. de*635nied sub nom. Downing v. United States, 493 U. S. 1025 (1990); State v. Baldwin, 101 Wis. 2d 441, 449-450, 304 N. W. 2d 742, 747-749 (1981).

We are not persuaded that the Gipson approach really answers the question, however. Although the classification of alternatives into “distinct conceptual groupings” is a way to express a judgment about the limits of permissible alternatives, the notion is too indeterminate to provide concrete guidance to courts faced with verdict specificity questions. See, e. g., Rice v. State, 311 Md. 116, 133, 532 A. 2d 1357, 1365 (1987) (criticizing Gipson criteria as “not entirely clear” and as “providing] little guidance”); Trubitt, Patchwork Verdicts, Different-Jurors Verdicts, and American Jury Theory: Whether Verdicts Are Invalidated by Juror Disagreement on Issues, 36 Okla. L. Rev. 473, 548-549 (1983) (same). This is so because conceptual groupings may be identified at various levels of generality, and we have no a priori standard to determine what level of generality is appropriate. Indeed, as one judge has noted, even on the facts of Gipson itself, “[o]ther conceptual groupings of the six acts are possible. [One might] put all six acts into one conceptual group, namely trafficking in stolen vehicles.” Manson v. State, 101 Wis. 2d 413, 438, 304 N. W. 2d 729, 741 (1981) (Abrahamson, J., concurring); accord, Trubitt, supra, at 548-549 (“[I]t is difficult to see how a court could determine that ‘housing’ and ‘marketing’ are ultimate acts in some metaphysical or constitutional sense, and thus prohibit the legislature from including them in the single offense of trafficking”). In short, the notion of “distinct conceptual groupings” is simply too conclu-sory to serve as a real test.

The dissent would avoid the indeterminacy of the Gipson approach by adopting an inflexible rule of maximum verdict specificity. In the dissent’s view, whenever a statute lists alternative means of committing a crime, “the jury [must] indicate on which of the alternatives it has based the defendant’s guilt,” post, at 656, even where there is no indication *636that the statute seeks to create separate crimes. This approach rests on the erroneous assumption that any statutory alternatives are ipso facto independent elements defining independent crimes under state law, and therefore subject to the axiomatic principle that the prosecution must prove independently every element of the crime. See post, at 656-658 (citing In re Winship, 397 U. S. 358 (1970), and Sandstrom v. Montana, 442 U. S. 510 (1979)). In point of fact, as the statute at issue in Gipson demonstrates, legislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes.6 The question whether statutory alternatives constitute independent elements of the offense therefore does not, as the dissent would have it, call for a mere tautology; rather, it is a substantial question of statutory construction. See, e. g., United States v. UCO Oil Co., 546 F. 2d, at 835-838.

In cases, like this one, involving state criminal statutes, the dissent’s “statutory alternatives” test runs afoul of the fundamental principle that we are not free to substitute our own interpretations of state statutes for those of a State’s courts. If a State’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law. See Mullaney v. Wilbur, 421 U. S. 684, 690-691 (1975) (declining to reexamine the Maine *637Supreme Judicial Court’s decision that, under Maine law, all intentional or criminally reckless killings are aspects of the single crime of felonious homicide); Murdock v. City of Memphis, 20 Wall. 590 (1875). In the present case, for example, by determining that a general verdict as to first-degree murder is permissible under Arizona law, the Arizona Supreme Court has effectively decided that, under state law, premeditation and the commission of a felony are not independent elements of the crime, but rather are mere means of satisfying a single mens rea element. The issue in this case therefore is not whether “the State must be held to its choice,” post, at 657-658, for the Arizona Supreme Court has authoritatively determined that the State has chosen not to treat premeditation and the commission of a felony as independent elements of the crime, but rather whether Arizona’s choice is unconstitutional.

B

It is tempting, of course, to follow the example of Gipson to the extent of searching for some single criterion that will serve to answer the question facing us. We are convinced, however, of the impracticability of trying to derive any single test for the level of definitional and verdict specificity permitted by the Constitution, and we think that instead of such a test our sense of appropriate specificity is a distillate of the concept of due process with its demands for fundamental fairness, see, e. g., Dowling v. United States, 493 U. S. 342, 352-353 (1990), and for the rationality that is an essential component of that fairness. In translating these demands for fairness and rationality into concrete judgments about the adequacy of legislative determinations, we look both to history and wide practice as guides to fundamental values, as well as to narrower analytical methods of testing the moral and practical equivalence of the different mental states that may satisfy the mens rea element of a single offense. The enquiry is undertaken with a threshold presumption of legis*638lative competence to determine the appropriate relationship between means and ends in defining the elements of a crime.

1

Judicial restraint necessarily follows from a recognition of the impossibility of determining, as an a priori matter, whether a given combination of facts is consistent with there being only one offense. Decisions about what facts are material and what are immaterial, or, in terms of Winship, supra, at 364, what “fact[s] [are] necessary to constitute the crime,” and therefore must be proved individually, and what facts are mere means, represent value choices more appropriately made in the first instance by a legislature than by a court. Respect for this legislative competence counsels restraint against judicial second-guessing, cf. Rostker v. Goldberg, 453 U. S. 57, 65 (1981) (“[L]ack of competence on the part of the courts” relative to the legislature so counsels), which is particularly appropriate in cases, like this one, that call state definitions into question. “It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, Irvine v. California, 347 U. S. 128, 134 (1954) (plurality opinion), and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States.” Patterson v. New York, 432 U. S. 197, 201 (1977).

There is support for such restraint in our “burden-shifting” cases, which have made clear, in a slightly different context, that the States must be permitted a degree of flexibility in defining the “fact[s] necessary to constitute the crime” under Winship. Each of those cases arose because a State defined an offense in such a way as to exclude some particular fact from those to be proved beyond a reasonable doubt, either by placing the burden on defendants to prove a mitigating fact, see Patterson, supra (extreme emotional disturbance); Martin v. Ohio, 480 U. S. 228 (1987) (self-defense); see also Mul- *639 laney, supra (heat of passion or sudden provocation), or by allowing the prosecution to prove an aggravating fact by some standard less than that of reasonable doubt, McMillan v. Pennsylvania, 477 U. S. 79 (1986) (possession of a firearm). In each case, the defendant argued that the excluded fact was inherently “a fact necessary to constitute the offense” that required proof beyond a reasonable doubt under Winship, even though the fact was not formally an element of the offense with which he was charged. See, e. g., id., at 90.

The issue presented here is similar, for under Arizona law neither premeditation nor the commission of a felony is formally an independent element of first-degree murder; they are treated as mere means of satisfying a mens rea element of high culpability. The essence of petitioner’s argument is that, despite this unitary definition of the offense, each of these means must be treated as an independent element as to which the jury must agree, because premeditated murder and felony murder are inherently separate offenses. Both here and in the burden-shifting cases, in other words, a defendant argues that the inherent nature of the offense charged requires the State to prove as an element of the offense some fact that is not an element under the legislative definition.

In the burden-shifting cases, as here, we have faced the difficulty of deciding, as an abstract matter, what elements an offense must comprise. Recognizing “[o]ur inability to lay down any ‘bright line’ test,” McMillan, 477 U. S., at 91, we have “stressed that . . . the state legislature’s definition of the elements of the offense is usually dispositive.” Id., at 85; see also Patterson, supra, at 201-202. We think that similar restraint is appropriate here, although we recognize that, as in the burden-shifting cases, “there are obviously constitutional limits beyond which the States may not go.” Patterson, supra, at 210; see also McMillan, supra, at 86.

*6402

The use here of due process as a measurement of the sense of appropriate specificity assumes the importance of history and widely shared practice as concrete indicators of what fundamental fairness and rationality require. In turning to these sources we again follow the example set in the burden-shifting cases, where we have often found it useful to refer both to history and to the current practice of other States in determining whether a State has exceeded its discretion in defining offenses. See Patterson, supra, at 202, 207-209, nn. 10-11; see also Martin, supra, at 235-236; Mullaney, 421 U. S., at 692-696. Where a State’s particular way of defining a crime has a long history, or is in widespread use, it is unlikely that a defendant will be able to demonstrate that the State has shifted the burden of proof as to what is an inherent element of the offense, or has defined as a single crime multiple offenses that are inherently separate. Conversely, a freakish definition of the elements of a crime that finds no analogue in history7 or in the criminal law of other jurisdictions will lighten the defendant’s burden.

Thus, it is significant that Arizona’s equation of the mental states of premeditated murder and felony murder as species of the blameworthy state of mind required to prove a single offense of first-degree murder finds substantial historical and contemporary echoes. At common law, murder was defined as the unlawful killing of another human being with “malice aforethought.” The intent to kill and the intent to commit a felony were alternative aspects of the single concept of “malice aforethought.” See 3 J. Stephen, History of the Criminal Law of England 21-22 (1883). Although American jurisdictions have modified the common law by legislation classifying murder by degrees, the resulting statutes have *641in most cases retained premeditated murder and some form of felony murder (invariably including murder committed in perpetrating or attempting to perpetrate a robbery) as alternative means of satisfying the mental state that first-degree murder presupposes. See 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.5, pp. 210-211, and nn. 21, 23, 24 (1986); ALI, Model Penal Code § 210.2, p. 32, and n. 78 (1980). Indeed, the language of the Arizona first-degree murder statute applicable here is identical in all relevant respects to the language of the first statute defining murder' by differences of degree, passed by the Pennsylvania Legislature in 1794.8

A series of state-court decisions, beginning with the leading case of People v. Sullivan, 173 N. Y. 122, 65 N. E. 989 (1903), have agreed that “it was not necessary that all the jurors should agree in the determination that there was a deliberate and premeditated design to take the life of the deceased, or in the conclusion that the defendant was at the time engaged in the commission of a felony, or an attempt to commit one; it was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as that offense is defined by the statute.” Id., at 127, 65 N. E., at 989-990. See People v. Milan, 9 Cal. 3d 185, 507 P. 2d 956 (1973); People v. Travis, 170 Ill. App. 3d 873, 525 N. E. 2d 1137 (1988), cert. denied, 489 U. S. 1024 (1989); State v. Fuhrmann, 257 N. W. 2d 619 (Iowa 1977); State v. Wilson, 220 Kan. 341, 552 P. 2d 931 (1976); Commonwealth v. Devlin, 335 Mass. 555, 141 N. E. 2d 269 (1957); People v. Embree, 70 Mich. App. *642382, 246 N. W. 2d 6 (1976); State v. Buckman, 237 Neb. 936, 468 N. W. 2d 589 (1991); James v. State, 637 P. 2d 862 (Okla. Crim. 1981); State v. Tillman, 750 P. 2d 546 (Utah 1987); see also Brown v. State, 473 So. 2d 1260 (Fla.), cert. denied, 474 U. S. 1038 (1985). Although the state courts have not been unanimous in this respect, see State v. Murray, 308 Ore. 496, 782 P. 2d 157 (1989), there is sufficiently widespread acceptance of the two mental states as alternative means of satisfying the mens rea element of the single crime of first-degree murder to persuade us that Arizona has not departed from the norm.

Such historical and contemporary acceptance of Arizona’s definition of the offense and verdict practice is a strong indication that they do not “ ‘offen[d] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’” Patterson, 432 U. S., at 202 (quoting Speiser, 357 U. S., at 523), for we recognize the high probability that legal definitions, and the practices comporting with them, are unlikely to endure for long, or to retain wide acceptance, if they are at odds with notions of fairness and rationality sufficiently fundamental to be comprehended in due process. Cf. Jackman v. Rosenbaum Co., 260 U. S. 22, 31 (1922) (Holmes, J.); Snyder, 291 U. S., at 111.

This is not to say that either history or current practice is dispositive. In McMillan, for example, even though many States had made the fact at issue (possession of a weapon) an element of various aggravated offenses, we were unwilling to conclude that Pennsylvania’s decision to treat it as an aggravating circumstance provable at sentencing by a mere preponderance of the evidence deviated so far from the constitutional norm as to violate the Due Process Clause. “That Pennsylvania’s particular approach has been adopted in few other States,” we observed, “does not render Pennsylvania’s choice unconstitutional.” 477 U. S., at 90; see also Martin, 480 U. S., at 235-236 (relying on history, but not current practice); Patterson, supra, at 211. Conversely, “‘neither *643the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack.’” Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 18 (1991) (quoting Williams v. Illinois, 399 U. S. 235, 239 (1970)). In fine, history and current practice are significant indicators of what we as a people regard as fundamentally fair and rational ways of defining criminal offenses, which are nevertheless always open to critical examination.

3

It is, as we have said, impossible to lay down any single analytical model for determining when two means are so disparate as to exemplify two inherently separate offenses. In the case before us, however, any scrutiny of the two possibilities for proving the mens rea of first-degree murder may appropriately take account of the function that differences of mental state perform in defining the relative seriousness of otherwise similar or identical criminal acts. See generally ALI, Model Penal Code §2.02(2) (1985) (defining differing mental states). If, then, two mental states are supposed to be equivalent means to satisfy the mens rea element of a single offense, they must reasonably reflect notions of equivalent blameworthiness or culpability, whereas a difference in their perceived degrees of culpability would be a reason to conclude that they identified different offenses altogether. Petitioner has made out no case for such moral disparity in this instance.

The proper critical question is not whether premeditated murder is necessarily the moral equivalent of felony murder in all possible instances of the latter. Our cases have recognized that not all felony murders are of identical culpability, compare Tison v. Arizona, 481 U. S. 137 (1987), with Enmund v. Florida, 458 U. S. 782 (1982), and the same point is suggested by examining state murder statutes, which frequently diverge as to what felonies may be the predicate of a felony-murder conviction. Compare, e. g., Tenn. Code Ann. *644§ 39-13-202 (Supp. 1990) (theft as predicate of first-degree felonymurder) with, e. g., Ariz. Rev. Stat. Ann. § 13-1105. A (1989) (theft not such a predicate).

The question, rather, is whether felony murder may ever be treated as the equivalent of murder by deliberation, and in particular whether robbery murder as charged in this case may be treated as thus equivalent. This is in fact the very question we considered only three Terms ago in the context of our capital sentencing jurisprudence in Tison, supra. There we held that “the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents [such] a highly culpable mental state . . . that [it] may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though not inevitable, lethal result.” Id., at 157-158. We accepted the proposition that this disregard occurs, for example, when a robber “shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property.” Id., at 157. Whether or not everyone would agree that the mental state that precipitates death in the course of robbery is the moral equivalent of premeditation, it is clear that such equivalence could reasonably be found, which is enough to rule out the argument that this moral disparity bars treating them as alternative means to satisfy the mental element of a single offense.9

*645We would not warrant that these considerations exhaust the universe of those potentially relevant to judgments about the legitimacy of defining certain facts as mere means to the commission of one offense. But they do suffice to persuade us that the jury’s options in this case did not fall beyond the constitutional bounds of fundamental fairness and rationality. We do not, of course, suggest that jury instructions requiring increased verdict specificity are not desirable, and in fact the Supreme Court of Arizona has itself recognized that separate verdict forms are useful in cases submitted to a jury on alternative theories of premeditated and felony murder. State v. Smith, 160 Ariz. 507, 513, 774 P. 2d 811, 817 (1989). We hold only that the Constitution did not command such a practice on the facts of this

III

Petitioner’s second contention is that under Beck v. Alabama, 447 U. S. 625 (1980), he was entitled to a jury instruction on the offense of robbery, which he characterizes as a lesser included offense of robbery murder.10 Beck held unconstitutional an Alabama statute that prohibited lesser in-*646eluded offense instructions in capital cases. Unlike the jury in Beck, the jury here was given the option of finding petitioner guilty of a lesser included noncapital offense, second-degree murder. While petitioner cannot, therefore, succeed under the strict holding of Beck, he contends that the due process principles underlying Beck require that the jury in a capital case be instructed on every lesser included noncapital offense supported by the evidence, and that robbery was such an offense in this case.

Petitioner misapprehends the conceptual underpinnings of Beck. Our fundamental concern in Beck was that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all. We explained:

“[0]n the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason — its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty [in Alabama] may encourage it to acquit for an equally impermissible reason — that, whatever his crime, the defendant does not deserve death. . . . [T]hese two extraneous factors .... introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.” Id., at 642 (footnote omitted).

We repeatedly stressed the all-or-nothing nature of the decision with which the jury was presented. See id., at 629, 630, 632, 634, 637, 642-643, and n. 19. As we later explained in Spaziano v. Florida, 468 U. S. 447, 455 (1984), “[t]he absence of a lesser included offense instruction increases the risk that the jury will convict . . . simply to avoid setting the defendant free. . . . The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process *647that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence.” See also Hopper v. Evans, 456 U. S. 605, 609 (1982). This central concern of Beck simply is not implicated in the present case, for petitioner’s jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence.

Petitioner makes much of the fact that the theory of his defense at trial was not that he murdered Mr. Grove without premeditation (which would have supported a second-degree murder conviction), but that, despite his possession of some of Mr. Grove’s property, someone else had committed the murder (which would have supported a theft or robbery conviction, but not second-degree murder). Petitioner contends that if the jurors had accepted his theory, they would have thought him guilty of robbery and innocent of murder, but would have been unable to return a verdict that expressed that view. Because Beck was based on this Court’s concern about “rules that diminish the reliability of the guilt determination” in capital cases, 447 U. S., at 638, the argument runs, the jurors should have been given the opportunity “to return a verdict in conformity with their reasonable view of the evidence.” Reply Brief for Petitioner 8. The dissent makes a similar argument. Post, at 660.

The argument is unavailing, because the fact that the jury’s “third option” was second-degree murder rather than robbery does not diminish the reliability of the jury’s capital murder verdict. To accept the contention advanced by petitioner and the dissent, we would have to assume that a jury unconvinced that petitioner was guilty of either capital or second-degree murder, but loath to acquit him completely (because it was convinced he was guilty of robbery), might choose capital murder rather than second-degree murder as its means of keeping him off the streets. Because we can see no basis to assume such irrationality, we are satisfied that *648the second-degree murder instruction in this case sufficed to ensure the verdict’s reliability.

That is not to suggest that Beck would be satisfied by instructing the jury on just any lesser included offense, even one without any support in the evidence. Cf. Roberts v. Louisiana, 428 U. S. 325, 334-335 (1976) (plurality opinion). In the present case, however, petitioner concedes that the evidence would have supported a second-degree murder conviction, Brief for Petitioner 18-19, and that is adequate to indicate that the verdict of capital murder represented no impermissible choice.

The judgment of the Supreme Court of Arizona is

Affirmed.

Justice Scalia,

concurring in part and concurring in the judgment.

The crime for which a jury in Yavapai County, Arizona, convicted Edward Harold Schad in 1985 has existed in the Anglo-American legal system, largely unchanged, since at least the early 16th century, see 3 J. Stephen, A History of the Criminal Law of England 45 (1883); R. Moreland, Law of Homicide 9-10 (1952). The common-law crime of murder was the unlawful killing of a human being by a person with “malice aforethought” or “malice prepense,” which consisted of an intention to kill or grievously injure, knowledge that an act or omission would probably cause death or grievous injury, an intention to commit a felony, or an intention to resist lawful arrest. Stephen, supra, at 22; see also 4 W. Blackstone, Commentaries 198-201 (1769); 1 M. Hale, Pleas of the Crown 451-466 (1st Am. ed. 1847).

The common law recognized no degrees of murder; all unlawful killing with malice aforethought received the same punishment — death. See F. Wharton, Law of Homicide 147 (3d ed. 1907); Moreland, supra, at 199. The rigor of this rule led to widespread dissatisfaction in this country. See McGautha v. California, 402 U. S. 183, 198 (1971). In 1794, *649Pennsylvania divided common-law murder into two offenses, defining the crimes thus:

“[A]ll murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree.” 1794 Pa. Laws, ch. 1766, §2.

That statute was widely copied, and down to the present time the United States and most States have a single crime of first-degree murder that can be committed by killing in the course of a robbery as well as premeditated killing. See, e. g., 18 U. S. C. § 1111; Cal. Penal Code Ann. § 189 (West 1988 and Supp. 1991); Kan. Stat. Ann. § 21.3401 (Supp. 1990); Mich. Comp. Laws Ann. § 750.316 (West 1991); Neb. Rev. Stat. §28-303 (1989).* It is Arizona’s variant of the 1794 Pennsylvania statute under which Schad was convicted in 1985 and which he challenges today.

Schad and the dissenting Justices would in effect have us abolish the crime of first-degree murder and declare that the Due Process Clause of the Fourteenth Amendment requires the subdivision of that crime into (at least) premeditated murder and felony murder. The plurality rejects that course — correctly, but not in my view for the correct reason.

As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. See, e. g., People v. Sullivan, 173 N. Y. 122, 65 N. E. 989 (1903); cf. H. Joyce, Indictments §§ 561-562, pp. 654-657 (2d ed. 1924); W. Mikell, Clark’s Criminal Procedure §§ 99-103, *650pp. 322-330 (2d ed. 1918); 1 J. Bishop, Criminal Procedure §§ 434-438, pp. 261-265 (2d ed. 1872). That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict. When a woman’s charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her. While that seems perfectly obvious, it is also true, as the plurality points out, see ante, at 633, that one can conceive of novel “umbrella” crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.

The issue before us is whether the present crime falls into the former or the latter category. The plurality makes heavy weather of this issue, because it starts from the proposition that “neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack,” ante, at 642-643 (internal quotation marks omitted). That is true enough. with respect to some constitutional attacks, but not, in my view, with respect to attacks under either the procedural component, see Pacific Mut. Life Insurance Co. v. Haslip, 499 U. S. 1, 28-38 (1991) (Scalia, J., concurring in judgment), or the so-called “substantive” component, see Michael H. v. Gerald D., 491 U. S. 110, 121-130 (1989) (plurality opinion), of the Due Process Clause. It is precisely the historical practices that define what is “due.” “Fundamental fairness” analysis may appropriately be applied to departures from traditional American conceptions of due process; but when judges test their individual notions of “fairness” against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges.

*651And that is the case here. Submitting killing in the course of a robbery and premeditated killing to the jury under a single charge is not some novel composite that can be subjected to the indignity of “fundamental fairness” review. It was the norm when this country was founded, was the norm when the Fourteenth Amendment was adopted in 1868, and remains the norm today. Unless we are here to invent a Constitution rather than enforce one, it is impossible that a practice as old as the common law and still in existence in the vast majority of States does not provide that process which is “due.”

If I did not believe that, I might well be with the dissenters in this case. Certainly the plurality provides no satisfactory explanation of why (apart from the endorsement of history) it is permissible to combine in one count killing in the course of robbery and killing by premeditation. The only point it makes is that the depravity of mind required for the two may be considered morally equivalent. Ante, at 643-645. But the petitioner here does not complain about lack of moral equivalence: He complains that, as far as we know, only six jurors believed he was participating in a robbery, and only six believed he intended to kill. Perhaps moral equivalence is a necessary condition for allowing such a verdict to stand, but surely the plurality does not pretend that it is sufficient. (We would not permit, for example, an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday, despite the “moral equivalence” of those two acts.) Thus, the plurality approves the Arizona practice in the present case because it meets one of the conditions for constitutional validity. It does not say what the other conditions are, or why the Arizona practice meets them. With respect, I do not think this delivers the “critical examination,” ante, at 643, which the plurality promises as a substitute for reliance upon historical practice. In fact, I think its analysis ultimately relies upon nothing but historical practice (whence does it derive even the “moral equivalence” requirement?)— *652but to acknowledge that reality would be to acknowledge a rational limitation upon our power, which bobtailed “critical examination” obviously is not. “Th[e] requirement of [due process] is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process due according to the law of the land.” Walker v. Sauvinet, 92 U. S. 90, 93 (1876) (citation omitted).

With respect to the second claim asserted by petitioner, I agree with Justice Souter’s analysis, and join Part III of his opinion. For these reasons, I would affirm the judgment of the Supreme Court of Arizona.

Justice White,

with whom Justice Marshall, Justice Blackmun, and Justice Stevens join, dissenting.

Because I disagree with the result reached on each of the two separate issues before the Court, and because what I deem to be the proper result on either issue alone warrants reversal of petitioner’s conviction, I respectfully dissent.

I

As In re Winship, 397 U. S. 358 (1970), makes clear, due process mandates “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged.” Id., at 364. In finding that the general jury verdict returned against petitioner meets the requirements of due process, the plurality ignores the import of Winship’s holding. In addition, the plurality mischaracter-izes the nature of the constitutional problem in this case.

It is true that we generally give great deference to the States in defining the elements of crimes. I fail to see, however, how that truism advances the plurality’s case. There is no failure to defer in recognizing the obvious: that premeditated murder and felony murder are alternative courses of conduct by which the crime of first-degree murder may be established. The statute provides:

“A murder which is perpetrated by means of poison or lying in wait, torture or by any other kind of wilful, de*653liberate or premeditated killing, or which is committed in avoiding or preventing lawful arrest or effecting an escape from legal custody, or in the pérpetration of, or attempt to perpetrate, arson, rape in the first degree, robbery, burglary, kidnapping, or mayhem, or sexual molestation of a child under the age of thirteen years, is murder of the first degree. All other kinds of murder are of the second degree.” Ariz. Rev. Stat. Ann. § 13-452 (Supp. 1973).

The statute thus sets forth three general categories of conduct which constitute first-degree murder: a “wilful, deliberate or premeditated killing”; a killing committed to avoid arrest or effect escape; and a killing which occurs during the attempt or commission of various specified felonies.

Here, the prosecution set out to convict petitioner of first-degree murder by either of two different paths, premeditated murder and felony murder/robbery. Yet while these two paths both lead to a conviction for first-degree murder, they do so by divergent routes possessing no elements in common except the fact of a murder. In his closing argument to the jury, the prosecutor himself emphasized the difference between premeditated murder and felony murder:

“There are two types of first degree murder, two ways for first degree murder to be committed. [One] is premeditated murder. There are three elements to that. One, that a killing take place, that the defendant caused someone’s death. Secondly, that he do so with malice. And malice simply means that he intended to kill or that he was very reckless in disregarding the life of the person he killed.

“And along with the killing and the malice, attached to that killing is a third element, that of premeditation, which simply means that the defendant contemplated that he would cause death, he reflected upon that.

*654“The other type of first degree murder, members of the jury, is what we call felony murder. It only has two components [sic] parts. One, that a death be caused, and, two, that that death be caused in the course of a felony, in this case a robbery. And so if you find that the defendant committed a robbery and killed in the process of that robbery, that also is first degree murder.” App. 6-7.

Unlike premeditated murder, felony murder does not require that the defendant commit the killing or even intend to kill, so long as the defendant is involved in the underlying felony. On the other hand, felony murder — but not premeditated murder — requires proof that the defendant had the requisite intent to commit and did commit the underlying felony. State v. McLoughlin, 139 Ariz. 481, 485, 679 P. 2d 504, 508 (1984). Premeditated murder, however, demands an intent to kill as well as premeditation, neither of which is required to prove felony murder. Thus, contrary to the plurality’s assertion, see ante, at 639, the difference between the two paths is not merely one of a substitution of one mens rea for another. Rather, each contains separate elements of conduct and state of mind which cannot be mixed and matched at will.1 It is particularly fanciful to equate *655an intent to do no more than rob with a premeditated intent to murder.

Consequently, a verdict that simply pronounces a defendant “guilty of first-degree murder” provides no clues as to whether the jury agrees that the three elements of premeditated murder or the two elements of felony murder have been proved beyond a reasonable doubt. Instead, it is entirely possible that half of the jury believed the defendant was guilty of premeditated murder and not guilty of felony murder/robbery, while half believed exactly the reverse. To put the matter another way, the plurality affirms this conviction without knowing that even a single element of either of the ways for proving first-degree murder, except the fact of a killing, has been found by a majority of the jury, let alone found unanimously by the jury as required by Arizona law. A defendant charged with first-degree murder is at least entitled to a verdict — -something petitioner did not get in this case as long as the possibility exists that no more than six jurors voted for any one element of first-degree murder, except the fact of a killing.2

The means by which the plurality attempts to justify the result it reaches do not withstand scrutiny. In focusing on *656our vagueness cases, see ante, at 632-633, the plurality misses the point. The issue is not whether the statute here is so vague that an individual cannot reasonably know what conduct is criminalized. Indeed, the statute’s specificity renders our vagueness cases inapplicable. The problem is that the Arizona statute, under a single heading, criminalizes several alternative patterns of conduct. While a State is free to construct a statute in this way, it violates due process for a State to invoke more than one statutory alternative, each with different specified elements, without requiring that the jury indicate on which of the alternatives it has based the defendant’s guilt.

The plurality concedes that “nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of ‘Crime’ so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for qxample, would suffice for conviction.” Ante, at 633. But this is very close to the effect of the jury verdict in this case. Allowing the jury to return a generic verdict following a prosecution on two separate theories with specified elements has the same effect as a jury verdict of “guilty of crime” based on alternative theories of embezzlement or reckless driving. Thus the statement that “[i]n Arizona, first degree murder is only one crime regardless whether it occurs as a premeditated murder or a felony murder,” State v. Encinas, 132 Ariz. 493, 496, 647 P. 2d 624, 627 (1982), neither recognizes nor resolves the issue in this case.

The plurality likewise misses the mark in attempting to compare this case to those in which the issue concerned proof of facts regarding the particular means by which a crime was committed. See ante, at 631-632. In the case of burglary, for example, the manner of entering is not an element of the crime; thus, Winship would not require proof beyond a reasonable doubt of such factual details as whether a defendant pried open a window with a screwdriver or a crowbar. *657It would, however, require the jury to find beyond a reasonable doubt that the defendant in fact broke and entered, because those are the “fact[s] necessary to constitute the crime.” 397 U. S., at 364.3

Nor do our cases concerning the shifting of burdens and the creation of presumptions help the plurality’s cause. See ante, at 638-639. Although this Court consistently has given deference to the State’s definition of a crime, the Court also has made clear that having set forth the elements of a crime, a State is not free to remove the burden of proving one of those elements from the prosecution. For example, in Sandstrom v. Montana, 442 U. S. 510 (1979), the Court recognized that “under Montana law, whether the crime was committed purposely or knowingly is a fact necessary to constitute the crime of deliberate homicide,” and stressed that the State therefore could not shift the burden of proving lack of intent to the defendant. Id., at 620-521. Conversely, in Patterson v. New York, 432 U. S. 197, 206-206 (1977), the Court found that it did not violate due process to require a defendant to establish the affirmative defense of extreme emotional disturbance, because “[t]he death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime.” Here, the question is not whether the State “must be permitted a degree of flexibility” in defining the elements of the offense. See ante, at 638. Surely it is entitled to that deference. But having determined that premeditated murder and felony murder are separate paths to establishing first-degree murder, each containing a separate set of elements from the other, the State must *658be held to its choice.4 Cf. Evitts v. Lucey, 469 U. S. 387, 401 (1985). To allow the State to avoid the consequences of its legislative choices through judicial interpretation would permit the State to escape federal constitutional scrutiny even when its actions violate rudimentary due process.

The suggestion that the state of mind required for felony murder/robbery and that for premeditated murder may reasonably be considered equivalent, see ante, at 644, is not only unbelievable, but it also ignores the distinct consequences that may flow from a conviction for each offense at sentencing. Assuming that the requisite statutory aggravating circumstance exists, the death penalty may be imposed for premeditated murder, because a conviction necessarily carries with it a finding that the defendant intended to kill. See Ariz. Rev. Stat. Ann. § 13-703 (1989). This is not the case with felony murder, for a conviction only requires that the death occur during the felony; the defendant need not be proved to be the killer. Thus, this Court has required that in order for the death penalty to be imposed for felony murder, there must be a finding that the defendant in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used, Enmund v. Florida, 458 U. S. 782, 797 (1982), or that the defendant was a major participant in *659the felony and exhibited reckless indifference to human life, Tison v. Arizona, 481 U. S. 137, 158 (1987).

In the instant case, the general verdict rendered by the jury contained no finding of intent or of actual killing by petitioner. The sentencing judge declared, however:

“[T]he court does consider the fact that a felony murder instruction was given in mitigation, however there is not evidence to indicate that this murder was merely incidental to a robbery. The nature of the killing itself belies that. . . .

“The court finds beyond a reasonable doubt that the defendant attempted to kill Larry Grove, intended to kill Larry Grove and that defendant did kill Larry Grove.

“The victim was strangled to death by a ligature drawn very tightly about the neck and tied in a double knot. No other reasonable conclusion can be drawn from the proof in this case, notwithstanding the felony murder instruction.” Tr. 8-9 (Aug. 29, 1985).

Regardless of what the jury actually had found in the guilt phase of the trial, the sentencing judge believed the murder was premeditated. Contrary to the plurality’s suggestion, see ante, at 644-645, n. 9, the problem is not that a general verdict fails to provide the sentencing judge with sufficient information concerning whether to impose the death sentence. The issue is much more serious than that. If in fact the jury found that premeditation was lacking, but that petitioner had committed felony murder/robbery, then the sentencing judge’s finding was in direct contravention of the jury verdict. It is clear, therefore, that the general jury verdict creates an intolerable risk that a sentencing judge may subsequently impose a death sentence based on findings that contradict those made by the jury during the guilt phase, but not revealed by their general verdict. Cf. State v. Smith, 160 Ariz. 507, 513, 774 P. 2d 811, 817 (1989).

*660II

I also cannot agree that the requirements of Beck v. Alabama, 447 U. S. 625 (1980), were satisfied by the instructions and verdict forms in this case. Beck held that “when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the ‘third option’ of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.” Id., at 637. The majority finds Beck satisfied because the jury here had the opportunity to convict petitioner of second-degree murder. See ante, at 646-648. But that alternative provided no “third option” to a choice between convicting petitioner of felony murder/robbery and acquitting him completely, because, as the State concedes, see Tr. of Oral Arg. 51-52, second-degree murder is a lesser included offense only of premeditated murder. Thus, the Arizona Supreme Court has declared that “ ‘[t]he jury may not be instructed on a lesser degree of murder than first degree where, under the evidence, it was committed in the course of a robbery.’” State v. Clayton, 109 Ariz. 587, 595, 514 P. 2d 720, 728 (1973), quoting State v. Kruchten, 101 Ariz. 186, 196, 417 P. 2d 510, 520 (1966), cert. denied, 385 U. S. 1043 (1967) (emphasis added). Consequently, if the jury believed that the course of events led down the path of felony murder/robbery, rather than premeditated murder, it could not have convicted petitioner of second-degree murder as a legitimate “third option” to capital murder or acquittal.

The State asserts that felony murder has no lesser included offenses.5 In order for a defendant to be convicted of fel*661ony murder, however, there must be evidence to support a conviction on the underlying felony, and the jury must be instructed as to the elements of the underlying felony. Although the jury need not find that the underlying felony was completed, the felony murder statute requires there to be at least an attempt to commit the crime. As a result, the jury could not have convicted petitioner of felony murder/robbery without first finding him guilty of robbery or attempted robbery.6 Indeed, petitioner’s first conviction was reversed because the trial judge had failed to instruct the jury on the elements of robbery. 142 Ariz. 619, 691 P. 2d 710 (1984). As the Arizona Supreme Court declared: “Fundamental error is present when a trial judge fails to instruct on matters vital to a proper consideration of the evidence. Knowledge of the elements of the underlying felonies was vital for the jurors to properly consider a felony murder theory.” Id., at 620-621, 691 P. 2d, at 711-712 (citation omitted).

It is true that the rule in Beck only applies if there is in fact a lesser included offense to that with which the defendant is charged, for “[w]here no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process.” Spaziano v. Florida, 468 U. S. 447, 455 (1984). But while deference is due state legislatures and courts in defining crimes, this deference has constitutional limits. In the case of a compound *662crime such as felony murder, in which one crime must be proved in order to prove the other, the underlying crime must, as a matter of law, be a lesser included offense of the greater.

Thus, in the instant case, robbery was a lesser included offense of the felony murder/robbery for which petitioner was tried. The Arizona Supreme Court acknowledged that “the evidence supported an instruction and conviction for robbery,” had robbery been a lesser included offense of felony murder/robbery. 163 Ariz. 411, 417, 788 P. 2d 1162, 1168 (1989). Consequently, the evidence here met “the independent prerequisite for a lesser included offense instruction that the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater.” Schmuck v. United States, 489 U. S. 705, 716, n. 8 (1989); see Keeble v. United States, 412 U. S. 205, 208 (1973). Due process required that the jury be given the opportunity to convict petitioner of robbery, a necessarily lesser included offense of felony murder/robbery. See Stevenson v. United States, 162 U. S. 313, 319-320 (1896).

Nor is it sufficient that a “third option” was given here for one of the prosecution’s theories but not the other. When the State chooses to proceed on various theories, each of which has lesser included offenses, the relevant lesser included instructions and verdict forms on each theory must be given in order to satisfy Beck. Anything less renders Beck, and the due process it guarantees, meaningless.

With all due respect, I dissent.

Justice KAGAN delivered the opinion of the Court.

The Armed Career Criminal Act (ACCA or Act), 18 U.S.C. § 924(e), imposes a 15-year mandatory minimum sentence on certain federal defendants who have three prior convictions for a "violent felony," including "burglary, arson, or extortion." To determine whether a past conviction is for one of those offenses, courts compare the elements of the crime of conviction with the elements of the "generic" version of the listed offense-i.e., the offense as commonly understood. For more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense. The question in this case is *2248whether ACCA makes an exception to that rule when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements. We decline to find such an exception.

I

A

ACCA prescribes a 15-year mandatory minimum sentence if a defendant is convicted of being a felon in possession of a firearm following three prior convictions for a "violent felony." § 924(e)(1). (Absent that sentence enhancement, the felon-in-possession statute sets a 10-year maximum penalty. See § 924(a)(2).) ACCA defines the term "violent felony" to include any felony, whether state or federal, that "is burglary, arson, or extortion." § 924(e)(2)(B)(ii). In listing those crimes, we have held, Congress referred only to their usual or (in our terminology) generic versions-not to all variants of the offenses. See Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). That means as to burglary-the offense relevant in this case-that Congress meant a crime "contain[ing] the following elements: an unlawful or unprivileged entry into ... a building or other structure, with intent to commit a crime." Ibid.

To determine whether a prior conviction is for generic burglary (or other listed crime) courts apply what is known as the categorical approach: They focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case. See id., at 600-601, 110 S.Ct. 2143. Distinguishing between elements and facts is therefore central to ACCA's operation. "Elements" are the "constituent parts" of a crime's legal definition-the things the "prosecution must prove to sustain a conviction." Black's Law Dictionary 634 (10th ed. 2014). At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant, see Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) ; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty, see McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Facts, by contrast, are mere real-world things-extraneous to the crime's legal requirements. (We have sometimes called them "brute facts" when distinguishing them from elements. Richardson, 526 U.S., at 817, 119 S.Ct. 1707.) They are "circumstance[s]" or "event[s]" having no "legal effect [or] consequence": In particular, they need neither be found by a jury nor admitted by a defendant. Black's Law Dictionary 709. And ACCA, as we have always understood it, cares not a whit about them. See, e.g., Taylor, 495 U.S., at 599-602, 110 S.Ct. 2143. A crime counts as "burglary" under the Act if its elements are the same as, or narrower than, those of the generic offense. But if the crime of conviction covers any more conduct than the generic offense, then it is not an ACCA "burglary"-even if the defendant's actual conduct (i.e., the facts of the crime) fits within the generic offense's boundaries.

The comparison of elements that the categorical approach requires is straightforward when a statute sets out a single (or "indivisible") set of elements to define a single crime. The court then lines up that crime's elements alongside those of the generic offense and sees if they match. So, for example, this Court found that a California statute swept more broadly than generic burglary because it criminalized entering a location (even if lawfully) with the intent to steal, and thus encompassed mere shoplifting. See *2249id., at 591, 110 S.Ct. 2143 ; Descamps v. United States, 570 U.S. ----, ---- - ----, 133 S.Ct. 2276, 2283-2284, 186 L.Ed.2d 438 (2013). Accordingly, no conviction under that law could count as an ACCA predicate, even if the defendant in fact made an illegal entry and so committed burglary in its generic form. See id., at ---- - ----, 133 S.Ct., at 2292-2293.

Some statutes, however, have a more complicated (sometimes called "divisible") structure, making the comparison of elements harder. Id., at ----, 133 S.Ct., at 2283. A single statute may list elements in the alternative, and thereby define multiple crimes. Suppose, for example, that the California law noted above had prohibited "the lawful entry or the unlawful entry" of a premises with intent to steal, so as to create two different offenses, one more serious than the other. If the defendant were convicted of the offense with unlawful entry as an element, then his crime of conviction would match generic burglary and count as an ACCA predicate; but, conversely, the conviction would not qualify if it were for the offense with lawful entry as an element. A sentencing court thus requires a way of figuring out which of the alternative elements listed-lawful entry or unlawful entry-was integral to the defendant's conviction (that is, which was necessarily found or admitted). See id., at ----, 133 S.Ct., at 2283. To address that need, this Court approved the "modified categorical approach" for use with statutes having multiple alternative elements. See, e.g., Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Under that approach, a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of. See ibid. ; Taylor, 495 U.S., at 602, 110 S.Ct. 2143. The court can then compare that crime, as the categorical approach commands, with the relevant generic offense.

This case concerns a different kind of alternatively phrased law: not one that lists multiple elements disjunctively, but instead one that enumerates various factual means of committing a single element. See generally Schad v. Arizona, 501 U.S. 624, 636, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality opinion) ("[L]egislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes"). To use a hypothetical adapted from two of our prior decisions, suppose a statute requires use of a "deadly weapon" as an element of a crime and further provides that the use of a "knife, gun, bat, or similar weapon" would all qualify. See Descamps, 570 U.S., at ----, 133 S.Ct., at 2289 ; Richardson, 526 U.S., at 817, 119 S.Ct. 1707. Because that kind of list merely specifies diverse means of satisfying a single element of a single crime-or otherwise said, spells out various factual ways of committing some component of the offense-a jury need not find (or a defendant admit) any particular item: A jury could convict even if some jurors "conclude[d] that the defendant used a knife" while others "conclude[d] he used a gun," so long as all agreed that the defendant used a "deadly weapon." Ibid. ; see Descamps, 570 U.S., at ----, 133 S.Ct., at 2288 (describing means, for this reason, as "legally extraneous circumstances"). And similarly, to bring the discussion back to burglary, a statute might-indeed, as soon discussed, Iowa's burglary law does-itemize the various places that crime could occur as disjunctive factual scenarios rather than separate elements, so that a jury need not make any specific findings (or a defendant admissions) on that score.

*2250The issue before us is whether ACCA treats this kind of statute as it does all others, imposing a sentence enhancement only if the state crime's elements correspond to those of a generic offense-or instead whether the Act makes an exception for such a law, so that a sentence can be enhanced when one of the statute's specified means creates a match with the generic offense, even though the broader element would not.

B

Petitioner Richard Mathis pleaded guilty to being a felon in possession of a firearm. See § 922(g). At sentencing, the Government asked the District Court to impose ACCA's 15-year minimum penalty based on Mathis's five prior convictions for burglary under Iowa law.

Iowa's burglary statute, all parties agree, covers more conduct than generic burglary does. See Brief for Petitioner 36; Brief for United States 44. The generic offense requires unlawful entry into a "building or other structure." Taylor, 495 U.S., at 598, 110 S.Ct. 2143 ; supra, at 2248. Iowa's statute, by contrast, reaches a broader range of places: "any building, structure, [or] land, water, or air vehicle ." Iowa Code § 702.12 (2013) (emphasis added). And those listed locations are not alternative elements, going toward the creation of separate crimes. To the contrary, they lay out alternative ways of satisfying a single locational element, as the Iowa Supreme Court has held: Each of the terms serves as an "alternative method of committing [the] single crime" of burglary, so that a jury need not agree on which of the locations was actually involved. State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981) ; see State v. Rooney, 862 N.W.2d 367, 376 (Iowa 2015) (discussing the single "broadly phrased ... element of place" in Iowa's burglary law). In short, the statute defines one crime, with one set of elements, broader than generic burglary-while specifying multiple means of fulfilling its locational element, some but not all of which (i.e., buildings and other structures, but not vehicles) satisfy the generic definition.

The District Court imposed an ACCA enhancement on Mathis after inspecting the records of his prior convictions and determining that he had burgled structures, rather than vehicles. See App. 34-35. The Court of Appeals for the Eighth Circuit affirmed. 786 F.3d 1068 (2015). It acknowledged that Iowa's burglary statute, by covering vehicles in addition to structures, swept more broadly than generic burglary. See id., at 1074. But it noted that if structures and vehicles were separate elements, each part of a different crime, then a sentencing court could invoke the modified categorical approach and look to old record materials to see which of those crimes the defendant had been convicted of. See id., at 1072-1074. And the Court of Appeals thought nothing changed if structures and vehicles were not distinct elements but only alternative means: "Whether [such locations] amount to alternative elements or merely alternative means to fulfilling an element," the Eighth Circuit held, a sentencing court "must apply the modified categorical approach" and inspect the records of prior cases. Id., at 1075. If the court found from those materials that the defendant had in fact committed the offense in a way that satisfied the definition of generic burglary-here, by burgling a structure rather than a vehicle-then the court should treat the conviction as an ACCA predicate. And that was so, the Court of Appeals stated, even though the elements of the crime of conviction, in encompassing both types of locations, were broader than those of the relevant generic offense. See id., at 1074-1075. In this circumstance, the court *2251thus found, ACCA's usual elements-based inquiry would yield to a facts-based one.

That decision added to a Circuit split over whether ACCA's general rule-that a defendant's crime of conviction can count as a predicate only if its elements match those of a generic offense-gives way when a statute happens to list various means by which a defendant can satisfy an element.1 We granted certiorari to resolve that division, 577 U.S. ----, 136 S.Ct. 894, 193 L.Ed.2d 788 (2016), and now reverse.

II

A

As just noted, the elements of Mathis's crime of conviction (Iowa burglary) cover a greater swath of conduct than the elements of the relevant ACCA offense (generic burglary). See supra, at 2249 - 2250. Under our precedents, that undisputed disparity resolves this case. We have often held, and in no uncertain terms, that a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense. See, e.g., Taylor, 495 U.S., at 602, 110 S.Ct. 2143. How a given defendant actually perpetrated the crime-what we have referred to as the "underlying brute facts or means" of commission, Richardson, 526 U.S., at 817, 119 S.Ct. 1707 -makes no difference; even if his conduct fits within the generic offense, the mismatch of elements saves the defendant from an ACCA sentence. Those longstanding principles, and the reasoning that underlies them, apply regardless of whether a statute omits or instead specifies alternative possible means of commission. The itemized construction gives a sentencing court no special warrant to explore the facts of an offense, rather than to determine the crime's elements and compare them with the generic definition.

Taylor set out the essential rule governing ACCA cases more than a quarter century ago. All that counts under the Act, we held then, are "the elements of the statute of conviction." 495 U.S., at 601, 110 S.Ct. 2143. So, for example, the label a State assigns to a crime-whether "burglary," "breaking and entering," or something else entirely-has no relevance to whether that offense is an ACCA predicate. See id., at 590-592, 110 S.Ct. 2143. And more to the point here: The same is true of "the particular facts underlying [the prior] convictions"-the means by which the defendant, in real life, committed his crimes. Id., at 600, 110 S.Ct. 2143. That rule can seem counterintuitive: In some cases, a sentencing judge knows (or can easily discover) that the defendant carried out a "real" burglary, even though the crime of conviction also extends to other conduct. No matter. Under ACCA, Taylor stated, it is impermissible for "a particular crime [to] sometimes count towards enhancement and sometimes not, depending on the facts of the case." Id., at 601, 110 S.Ct. 2143. Accordingly, a sentencing judge may look only to "the elements of the [offense], not to the facts of [the] defendant's conduct." Ibid .

That simple point became a mantra in our subsequent ACCA decisions.2 At the *2252risk of repetition (perhaps downright tedium), here are some examples. In Shepard : ACCA "refers to predicate offenses in terms not of prior conduct but of prior 'convictions' and the 'element[s]' of crimes." 544 U.S., at 19, 125 S.Ct. 1254 (alteration in original). In James v. United States : "[W]e have avoided any inquiry into the underlying facts of [the defendant's] particular offense, and have looked solely to the elements of [burglary] as defined by [state] law." 550 U.S. 192, 214, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). In Sykes v. United States : "[W]e consider [only] the elements of the offense [,] without inquiring into the specific conduct of this particular offender." 564 U.S. 1, 7, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (quoting James, 550 U.S., at 202, 127 S.Ct. 1586 ; emphasis in original). And most recently (and tersely) in Descamps : "The key [under ACCA] is elements, not facts." 570 U.S., at ----, 133 S.Ct., at 2283.

Our decisions have given three basic reasons for adhering to an elements-only inquiry. First, ACCA's text favors that approach. By enhancing the sentence of a defendant who has three "previous convictions" for generic burglary, § 924(e)(1) -rather than one who has thrice committed that crime-Congress indicated that the sentencer should ask only about whether "the defendant had been convicted of crimes falling within certain categories," and not about what the defendant had actually done. Taylor, 495 U.S., at 600, 110 S.Ct. 2143. Congress well knows how to instruct sentencing judges to look into the facts of prior crimes: In other statutes, using different language, it has done just that. See United States v. Hayes, 555 U.S. 415, 421, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (concluding that the phrase "an offense ... committed" charged sentencers with considering non-elemental facts); Nijhawan v. Holder, 557 U.S. 29, 36, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (construing an immigration statute to "call[ ] for a 'circumstance-specific,' not a 'categorical' interpretation"). But Congress chose another course in ACCA, focusing on only "the elements of the statute of conviction." Taylor, 495 U.S., at 601, 110 S.Ct. 2143.

Second, a construction of ACCA allowing a sentencing judge to go any further would raise serious Sixth Amendment concerns. This Court has held that only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). That means a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense. See Shepard, 544 U.S., at 25, 125 S.Ct. 1254 (plurality opinion); id., at 28, 125 S.Ct. 1254 (THOMAS, J., concurring in part and concurring in judgment) (stating that such an approach would amount to "constitutional error"). He is prohibited from conducting such an inquiry himself; and so too he is barred from making a disputed determination about "what the defendant and state judge must have understood as the factual basis of the prior plea" or "what the jury in a prior trial must have accepted as the theory of the crime." See id., at 25, 125 S.Ct. 1254 (plurality opinion); Descamps, 570 U.S., at ----, 133 S.Ct., at 2288. He can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

*2253And third, an elements-focus avoids unfairness to defendants. Statements of "non-elemental fact" in the records of prior convictions are prone to error precisely because their proof is unnecessary. Id., at ----, 133 S.Ct., at 2288-2289. At trial, and still more at plea hearings, a defendant may have no incentive to contest what does not matter under the law; to the contrary, he "may have good reason not to"-or even be precluded from doing so by the court. Ibid. When that is true, a prosecutor's or judge's mistake as to means, reflected in the record, is likely to go uncorrected. See ibid.3 Such inaccuracies should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence.

Those three reasons stay as strong as ever when a statute, instead of merely laying out a crime's elements, lists alternative means of fulfilling one (or more) of them. ACCA's use of the term "convictions" still supports an elements-based inquiry; indeed, that language directly refutes an approach that would treat as consequential a statute's reference to factual circumstances not essential to any conviction. Similarly, the Sixth Amendment problems associated with a court's exploration of means rather than elements do not abate in the face of a statute like Iowa's: Whether or not mentioned in a statute's text, alternative factual scenarios remain just that-and so remain off-limits to judges imposing ACCA enhancements. And finally, a statute's listing of disjunctive means does nothing to mitigate the possible unfairness of basing an increased penalty on something not legally necessary to a prior conviction. Whatever the statute says, or leaves out, about diverse ways of committing a crime makes no difference to the defendant's incentives (or lack thereof) to contest such matters.

For these reasons, the court below erred in applying the modified categorical approach to determine the means by which Mathis committed his prior crimes. 786 F.3d, at 1075. ACCA, as just explained, treats such facts as irrelevant: Find them or not, by examining the record or anything else, a court still may not use them to enhance a sentence. And indeed, our cases involving the modified categorical approach have already made exactly that point. "[T]he only [use of that approach] we have ever allowed," we stated a few Terms ago, is to determine "which element[s] played a part in the defendant's conviction." Descamps, 570 U.S., at ----, ----, 133 S.Ct., at 2283, 2285 (emphasis added); see Taylor, 495 U.S., at 602, 110 S.Ct. 2143 (noting that the modified approach may be employed only to determine whether "a jury necessarily had to find" each element of generic burglary). In other words, the modified approach serves-and serves solely-as a tool to identify the elements of the crime of conviction when a statute's disjunctive phrasing renders one (or more) of them opaque. See *2254Descamps, 570 U.S., at ----, 133 S.Ct., at 2285.4 It is not to be repurposed as a technique for discovering whether a defendant's prior conviction, even though for a too-broad crime, rested on facts (or otherwise said, involved means) that also could have satisfied the elements of a generic offense.

B

The Government and Justice BREYER claim that our longtime and exclusive focus on elements does not resolve this case because (so they say) when we talked about "elements," we did not really mean it. "[T]he Court used 'elements,' " the Government informs us, "not to distinguish between 'means' and 'elements,' " but instead to refer to whatever the statute lists-whether means or elements. Brief for United States 8; see id., at 19. In a similar vein, Justice BREYER posits that every time we said the word "element," we "used the word generally, simply to refer to the matter at issue," without "intend[ing] to set forth a generally applicable rule." Post, at 2265 (dissenting opinion).

But a good rule of thumb for reading our decisions is that what they say and what they mean are one and the same; and indeed, we have previously insisted on that point with reference to ACCA's elements-only approach. In Descamps, the sole dissenting Justice made an argument identical to the one now advanced by the Government and Justice BREYER: that our prior caselaw had not intended to distinguish between statutes listing alternative elements and those setting out "merely alternative means" of commission. 570 U.S., at ----, 133 S.Ct., at 2298 (opinion of ALITO, J.).5 The Court rejected that contention, stating that "[a]ll those decisions rested on the explicit premise that the laws contain[ed] statutory phrases that cover several different crimes, not several different methods of committing one offense"-in other words, that they listed *2255alternative elements, not alternative means. Id., at ----, n. 2, 133 S.Ct., at 2285, n. 2 (ellipsis and internal quotation marks omitted); see, e.g., Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ; Nijhawan, 557 U.S., at 35, 129 S.Ct. 2294. That premise was important, we explained, because an ACCA penalty may be based only on what a jury "necessarily found" to convict a defendant (or what he necessarily admitted). Descamps, 570 U.S., at ----, ----, 133 S.Ct., at 2287, 2290. And elements alone fit that bill; a means, or (as we have called it) "non-elemental fact," is "by definition[ ] not necessary to support a conviction." Id., at ----, n. 3, ----, 133 S.Ct., at 2286, n. 3, 2288 ; see supra, at 2248.6 Accordingly, Descamps made clear that when the Court had earlier said (and said and said) "elements," it meant just that and nothing else.

For that reason, this Court (including Justice BREYER) recently made clear that a court may not look behind the elements of a generally drafted statute to identify the means by which a defendant committed a crime. See Descamps, 570 U.S., at ----, 133 S.Ct., at 2282-2282. Consider if Iowa defined burglary as involving merely an unlawful entry into a "premises"-without any further elaboration of the types of premises that exist in the world (e.g., a house, a building, a car, a boat). Then, all agree, ACCA's elements-focus would apply. No matter that the record of a prior conviction clearly indicated that the defendant burgled a house at 122 Maple Road-and that the jury found as much; because Iowa's (hypothetical) law included an element broader than that of the generic offense, the defendant could not receive an ACCA sentence. Were that not so, this Court stated, "the categorical approach [would be] at an end"; the court would merely be asking "whether a particular set of facts leading to a conviction conforms to a generic ACCA offense." Id., at ----, 133 S.Ct., at 2291. That conclusion is common ground, and must serve as the baseline for anything Justice BREYER (or the Government) here argues.

And contrary to his view, that baseline not only begins but also ends the analysis, because nothing material changes if Iowa's law further notes (much as it does) that a "premises" may include "a house, a building, a car, or a boat." That fortuity of legislative drafting affects neither the oddities *2256of applying the categorical approach nor the reasons for doing so. On the one hand, a categorical inquiry can produce the same counter-intuitive consequences however a state law is written. Whether or not the statute lists various means of satisfying the "premises" element, the record of a prior conviction is just as likely to make plain that the defendant burgled that house on Maple Road and the jury knew it. On the other hand (and as already shown), the grounds-constitutional, statutory, and equitable-that we have offered for nonetheless using the categorical approach lose none of their force in the switch from a generally phrased statute (leaving means implicit) to a more particular one (expressly enumerating them). See supra, at 2253. In every relevant sense, both functional and legal, the two statutes-one saying just "premises," the other listing structures and vehicles-are the same. And so the same rule must apply: ACCA disregards the means by which the defendant committed his crime, and looks only to that offense's elements.

C

The first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means. If they are elements, the court should do what we have previously approved: review the record materials to discover which of the enumerated alternatives played a part in the defendant's prior conviction, and then compare that element (along with all others) to those of the generic crime. See ibid. But if instead they are means, the court has no call to decide which of the statutory alternatives was at issue in the earlier prosecution. Given ACCA's indifference to how a defendant actually committed a prior offense, the court may ask only whether the elements of the state crime and generic offense make the requisite match.

This threshold inquiry-elements or means?-is easy in this case, as it will be in many others. Here, a state court decision definitively answers the question: The listed premises in Iowa's burglary law, the State Supreme Court held, are "alternative method[s]" of committing one offense, so that a jury need not agree whether the burgled location was a building, other structure, or vehicle. See Duncan, 312 N.W.2d, at 523 ; supra, at 2250. When a ruling of that kind exists, a sentencing judge need only follow what it says. See Schad, 501 U.S., at 636, 111 S.Ct. 2491 (plurality opinion). Likewise, the statute on its face may resolve the issue. If statutory alternatives carry different punishments, then under Apprendi they must be elements. See, e.g., Colo.Rev.Stat. § 18-4-203 (2015) ; Vt. Stat. Ann., Tit. 13, § 1201 (Cum. Supp. 2015); see also 530 U.S., at 490, 120 S.Ct. 2348 (requiring a jury to agree on any circumstance increasing a statutory penalty); supra, at 2252. Conversely, if a statutory list is drafted to offer "illustrative examples," then it includes only a crime's means of commission. United States v. Howard, 742 F.3d 1334, 1348 (C.A.11 2014) ; see United States v. Cabrera-Umanzor, 728 F.3d 347, 353 (C.A.4 2013). And a statute may itself identify which things must be charged (and so are elements) and which need not be (and so are means). See, e.g., Cal.Penal Code Ann. § 952 (West 2008). Armed with such authoritative sources of state law, federal sentencing courts can readily determine the nature of an alternatively phrased list.

And if state law fails to provide clear answers, federal judges have another place to look: the record of a prior conviction itself. As Judge Kozinski has explained, such a "peek at the [record] documents" is for "the sole and limited purpose of determining whether [the listed items *2257are] element[s] of the offense." Rendon v. Holder, 782 F.3d 466, 473-474 (C.A.9 2015) (opinion dissenting from denial of reh'g en banc).7 (Only if the answer is yes can the court make further use of the materials, as previously described, see supra, at 2253 - 2254.) Suppose, for example, that one count of an indictment and correlative jury instructions charge a defendant with burgling a "building, structure, or vehicle"-thus reiterating all the terms of Iowa's law. That is as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt. So too if those documents use a single umbrella term like "premises": Once again, the record would then reveal what the prosecutor has to (and does not have to) demonstrate to prevail. See Descamps, 570 U.S., at ----, 133 S.Ct., at 2290. Conversely, an indictment and jury instructions could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime. Of course, such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy "Taylor 's demand for certainty" when determining whether a defendant was convicted of a generic offense. Shepard, 544 U.S., at 21, 125 S.Ct. 1254. But between those documents and state law, that kind of indeterminacy should prove more the exception than the rule.

III

Our precedents make this a straightforward case. For more than 25 years, we have repeatedly made clear that application of ACCA involves, and involves only, comparing elements. Courts must ask whether the crime of conviction is the same as, or narrower than, the relevant generic offense. They may not ask whether the defendant's conduct-his particular means of committing the crime-falls within the generic definition. And that rule does not change when a statute happens to list possible alternative means of commission: Whether or not made explicit, they remain what they ever were-just the facts, which ACCA (so we have held, over and over) does not care about.

Some have raised concerns about this line of decisions, and suggested to Congress that it reconsider how ACCA is written. See, e.g., Chambers v. United States, 555 U.S. 122, 133, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (ALITO, J., concurring in judgment); Descamps, 570 U.S., at ----, 133 S.Ct., at 2293-2294 (KENNEDY, J., concurring). But whether for good or for ill, the elements-based approach remains the law. And we will not introduce inconsistency and arbitrariness into our ACCA decisions by here declining to follow its requirements. Everything this Court has ever said about ACCA runs counter to the Government's position. That alone is sufficient reason to reject it: Coherence has a claim on the law.

Because the elements of Iowa's burglary law are broader than those of generic burglary, Mathis's convictions under that law cannot give rise to an ACCA sentence. We accordingly reverse the judgment of the Court of Appeals.

It is so ordered.

*2258Justice KENNEDY, concurring.

The Court's opinion is required by its precedents, and so I join it, with one reservation set forth below.

In no uncertain terms, the Court has held that the word "burglary" in the Armed Career Criminal Act (ACCA) "refers to the elements of the statute of conviction, not to the facts of each defendant's conduct." Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). An enhancement is proper, the Court has said, if a defendant is convicted of a crime "having the elements" of generic burglary, "regardless of its exact definition or label" under state law. Id., at 599, 110 S.Ct. 2143. See also Descamps v. United States, 570 U.S. ----, ----, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013) ("[T]he categorical approach's central feature [is] a focus on the elements, rather than the facts, of a crime"). In the instant case, then, the Court is correct to conclude that "an elements-based approach remains the law." Ante. at 2255. And it is correct to note further that it would "introduce inconsistency and arbitrariness into our ACCA decisions by here declining to follow its requirements," without reconsidering our precedents as a whole. Ibid.

My one reservation to the Court's opinion concerns its reliance on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Ante at 2252. In my view, Apprendi was incorrect and, in any event, does not compel the elements based approach. That approach is required only by the Court's statutory precedents, which Congress remains free to overturn.

As both dissenting opinions point out, today's decision is a stark illustration of the arbitrary and inequitable results produced by applying an elements based approach to this sentencing scheme. It could not have been Congress' intent for a career offender to escape his statutorily mandated punishment "when the record makes it clear beyond any possible doubt that [he] committed generic burglary." Post, at 2270 (opinion of ALITO, J.). Congress also could not have intended vast sentencing disparities for defendants convicted of identical criminal conduct in different jurisdictions.

Congress is capable of amending the ACCA to resolve these concerns. See, e.g., Nijhawan v. Holder, 557 U.S. 29, 38, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (interpreting the language Congress used in 8 U.S.C. § 1101(a)(43)(M)(i) as requiring a "circumstance-specific" rather than categorical approach). But continued congressional inaction in the face of a system that each year proves more unworkable should require this Court to revisit its precedents in an appropriate case.

Justice THOMAS, concurring.

I join the Court's opinion, which faithfully applies our precedents. The Court holds that the modified categorical approach cannot be used to determine the specific means by which a defendant committed a crime. Ante, at 2253 - 2254. By rightly refusing to apply the modified categorical approach, the Court avoids further extending its precedents that limit a criminal defendant's right to a public trial before a jury of his peers.

In Almendarez-Torres v. United States, 523 U.S. 224, 246-247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Court held that the existence of a prior conviction triggering enhanced penalties for a recidivist was a fact that could be found by a judge, not an element of the crime that must be found by a jury. Two years later, the Court held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum" is an element *2259of a crime and therefore "must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; see id., at 489-490, 120 S.Ct. 2348. But Apprendi recognized an exception for the "fact of a prior conviction," instead of overruling Almendarez-Torres. See 530 U.S., at 490, 120 S.Ct. 2348. I continue to believe that the exception in Apprendi was wrong, and I have urged that Almendarez-Torres be reconsidered. See Descamps v. United States, 570 U.S. ----, ----, 133 S.Ct. 2276, 2294-2295, 186 L.Ed.2d 438 (2013) (THOMAS, J., concurring in judgment).

Consistent with this view, I continue to believe that depending on judge-found facts in Armed Career Criminal Act (ACCA) cases violates the Sixth Amendment and is irreconcilable with Apprendi . ACCA improperly "allows the judge to 'mak[e] a finding that raises [a defendant's] sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant.' " Descamps, supra, at ---- - ----, 133 S.Ct., at 2294-2295 (opinion of THOMAS, J.) (brackets in original; internal quotation marks omitted). This Sixth Amendment problem persists regardless of whether "a court is determining whether a prior conviction was entered, or attempting to discern what facts were necessary to a prior conviction." Id., at ----, 133 S.Ct., at 2294 (citation omitted).

Today, the Court "at least limits the situations in which courts make factual determinations about prior convictions." Ibid. As the Court explains, the means of committing an offense are nothing more than "various factual ways of committing some component of the offense." Ante, at 2249. Permitting judges to determine the means of committing a prior offense would expand Almendarez-Torres . Therefore, I join the Court's opinion refusing to allow judges to determine, without a jury, which alternative means supported a defendant's prior convictions.

Justice BREYER, with whom Justice GINSBURG joins, dissenting.

The elements/means distinction that the Court draws should not matter for sentencing purposes. I fear that the majority's contrary view will unnecessarily complicate federal sentencing law, often preventing courts from properly applying the sentencing statute that Congress enacted. I consequently dissent.

I

The federal statute before us imposes a mandatory minimum sentence upon a person convicted of being a felon in possession of a firearm if that person also has three previous convictions for (among several other things) "burglary." 18 U.S.C. § 924(e)(2)(B)(ii). The petitioner here has been convicted of being a felon in possession, and he previously was convicted of three other crimes that qualify him for the federal mandatory minimum if, but only if, those previous convictions count as "burglary." To decide whether he has committed what the federal statute calls a "burglary," we must look to the state statute that he violated.

The relevant state statute, an Iowa statute, says that a person commits a crime if he (1) "enters an occupied structure," (2) "having no right ... to do so," (3) with "the intent to commit a felony." Iowa Code § 713.1 (2013). It then goes on to define "occupied structure" as including any (1) "building," (2) "structure," (3) "land" vehicle, (4) "water" vehicle, or (5) "air vehicle, or similar place." § 702.12. The problem arises because, as we have previously held, see Taylor v. United *2260States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), if the structure that an offender unlawfully entered (with intent to commit a felony) was a "building," the state crime that he committed counts under the federal statute as "burglary." But if the structure that the offender unlawfully entered was a land, water, or air vehicle, the state crime does not count as a "burglary." Thus, a conviction for violating the state statute may, or may not, count as a "burglary," depending upon whether the structure that he entered was, say, a "building" or a "water vehicle."

Here, if we look at the court documents charging Mathis with a violation of the state statute, they tell us that he was charged with entering, for example, a "house and garage." App. 60-73 (charging documents). They say nothing about any other structure, say, a "water vehicle." Thus, to convict him, the jury-which had to find that he unlawfully entered an "occupied structure"-must have found that he entered a "house and garage," which concededly count as "building [s]." So why is that not the end of this matter? Why does the federal statute not apply?

Just to be sure, let us look at how we previously treated an almost identical instance. In Taylor, a state statute made criminal the "breaking and entering [of] a building, booth, tent, boat, or railroad car." 495 U.S., at 579, n. 1, 110 S.Ct. 2143. We explained that breaking into a building would amount to "burglary" under the federal statute, but breaking into a railroad car would not. But the conviction document itself said only that the offender had violated the statute; it did not say whether he broke into a building or a railroad car. See id., at 598-602, 110 S.Ct. 2143. We said that in such a case the federal sentencing judge could look at the charging papers and the jury instructions in the state case to try to determine what the state conviction was actually for: building, tent, or railroad car. We wrote that

"in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement." Id., at 602, 110 S.Ct. 2143.

(We later added that where a conviction rests upon an offender's guilty plea, the federal judge can look to the facts that the offender admitted at his plea colloquy for the same purpose. See Shepard v. United States, 544 U.S. 13, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).)

So, again, what is the problem? The State's "burglary statut[e] include[s] entry" of a vehicle as well as a "building." Taylor, 495 U.S., at 602, 110 S.Ct. 2143. The conviction document might not specify what kind of a structure the defendant entered (i.e., whether a building or an automobile). But the federal sentencing judge can look at the charging documents (or plea colloquy) to see whether "the defendant was charged only with a burglary of a building." Ibid. And here that was so. In addition, since the charging documents show that the defendant was charged only with illegal entry of a "building"-not a tent or a railroad car-the jury, in order to find (as it did) that the defendant broke into an occupied structure, would "necessarily [have] had to find an entry of a building." Ibid. Hence, "the Government should be allowed to use the conviction for enhancement." Ibid.

The majority, however, does not agree that the two cases I have described are almost identical. To the contrary, it notes correctly that our precedent often uses the word "element" to describe the relevant *2261facts to which a statute refers when it uses words such as "building," "tent," "boat," or "railroad car." See, e.g., ante, at 2251 - 2252. It points out that, here, the Iowa Supreme Court described those words as referring, not to "elements" of a crime, but rather to "means" through which a crime was committed. See ante, at 2249 - 2250. And that fact, in the majority's view, makes all the difference. See ante, at 2254 - 2256. But why? I, of course, see that there is a distinction between means and elements in the abstract, but-for sentencing purposes-I believe that it is a distinction without a difference.

II

I begin with a point about terminology. All the relevant words in this case, such as "building," "structure," "water vehicle," and the like, are statutory words. Moreover, the statute uses those words to help describe a crime. Further, the statute always uses those words to designate facts . Whether the offender broke into a building is a fact; whether he broke into a water vehicle is a fact. Sometimes, however, a State may treat certain of those facts as elements of a crime. And sometimes a State may treat certain of those facts as means of committing a crime. So far, everyone should agree. See Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (describing both "elements" and "means" as "facts"). Where we disagree is whether that difference, relevant to the application of state law, should make a difference for federal sentencing purposes.

III

Whether a State considers the statutory words "boat" or "building" to describe elements of a crime or a means of committing a crime can make a difference for purposes of applying the State's criminal law, but it should not make a difference in respect to the sentencing question at issue here. The majority, I believe, reasons something like this: Suppose the jury unanimously agreed that the defendant unlawfully entered some kind of structure with felonious intent, but the jury is deadlocked six to six as to whether that structure is (1) a "boat" or (2) a "house." If the statute uses those two words to describe two different elements of two different crimes-i.e., (1) breaking into a boat, and (2) breaking into a house-then the defendant wins, for the jury has not found unanimously each element of either crime. But if the statute uses those two words to describe two different means of committing the same crime-i.e., breaking into an occupied structure that consists of either a house or a boat-then the defendant loses, for (as long as the jury decides unanimously that the defendant broke into an occupied structure of whichever kind) the jury need not decide unanimously which particular means the defendant used to commit the crime. See ante, at 2248 - 2250.

I accept that reasoning. But I do not see what it has to do with sentencing. In the majority's view, the label "means" opens up the possibility of a six-to-six jury split, and it believes that fact would prevent us from knowing whether the conviction was for breaking into a "building" or a "boat." See ante, at 2249 - 2250. But precisely the same is true were we to use the label "element" to describe the facts set forth in the state statute. The federal sentencing judge may see on the defendant's record a conviction for violating a particular provision of the state criminal code; that code may list in a single sentence both "buildings" and "boats"; the State may interpret the two words as separate elements of two separate crimes; and the federal judge will not know from the simple fact of conviction for violating the statute (without more) which of the *2262two crimes was at issue (that is, was it the one aimed at burglaries of buildings, or the one aimed at burglaries of boats?). That is why the Court said in Taylor that in such a case the federal judge may look to the "indictment or information and jury instructions" to determine whether "the jury necessarily had to find an entry of a building," rather than a boat, "to convict." 495 U.S., at 602, 110 S.Ct. 2143. If so, the federal judge may count the conviction as falling within the federal statutory word "burglary" and use it for sentencing.

In my view, precisely the same is true if the state courts label the statute-mentioned facts ("building," "boat," etc.) as "means" rather than "elements." The federal judge should be able to "look ... to" the charging documents and the plea agreement to see if "the jury necessarily had to find an entry of a building," rather than a boat, "to convict." Ibid. If so, the federal judge should be able to count the conviction as a federal-statute "burglary" conviction and use it for sentencing.

Of course, sometimes the charging documents will not give us the answer to the question. But often they will. If, for example, the charging document accuses Smith of breaking and entering into a house (and does not mention any other structure), then (1) the jury had to find unanimously that he broke into a "house," if "house" is an element, and (2) the jury had to find unanimously that he broke into a "house," if "house" is the only means charged. (Otherwise the jury would not have unanimously found that he broke into an "occupied structure," which is an element of the statutory crime.)

Suppose, for example, that breaking into a "building" is an element of Iowa's burglary crime; and suppose the State charges that Smith broke into a building located in Des Moines (and presents evidence at trial concerning only a Des Moines offense), but the jury returns its verdict on a special-verdict form showing that six jurors voted for guilt on the theory that he broke into a building located in Detroit-not Des Moines. The conviction would fail (at least in Iowa), would it not? See, e.g., State v. Bratthauer, 354 N.W.2d 774, 776 (Iowa 1984) ("If substantial evidence is presented to support each alternative method of committing a single crime, and the alternatives are not repugnant to each other, then unanimity of the jury as to the mode of commission of the crime is not required. At the root of this standard is the principle that the unanimity rule requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged" (emphasis added; citation, brackets, and internal quotation marks omitted)). Similarly, we would know that-if the charging documents claim only that the defendant broke into a house, and the Government presented proof only of that kind of burglary-the jury had to find unanimously that he broke into a house, not a boat. And that is so whether state law considers the statutory word "house" to be an element or a means. I have not found any nonfanciful example to the contrary.

IV

Consider the federal statute before us-the statute that contains the word "burglary"-from a more general sentencing perspective. By way of background, it is important to understand that, as a general matter, any sentencing system must embody a host of compromises between theory and practicality. From the point of view of pure theory, there is much to be said for "real offense" sentencing. Such a system would require a commission or a sentencing judge to determine in some *2263detail "the actual conduct in which the defendant engaged," i.e., what the defendant really did now and in the past. United States Sentencing Commission (USSC), Guidelines Manual ch. 1, pt. A, p. 5 (Nov. 2015). Such a system would produce greater certainty that two offenders who engaged in (and had previously engaged in) the same real conduct would be punished similarly. See ibid.

Pure "real offense" sentencing, however, is too complex to work. It requires a sentencing judge (or a sentencing commission) to know all kinds of facts that are difficult to discover as to present conduct and which a present sentencing judge could not possibly know when he or she seeks to determine what conduct underlies a prior conviction. Because of these practical difficulties, the USSC created Guidelines that in part reflect a "charge offense" system, a system based "upon the conduct that constitutes the elements of the offense for which the defendant was charged and of which he was convicted." Ibid.

A pure "charge offense" system, however, also has serious problems. It can place great authority to determine a sentence in the hands of the prosecutor, not the judge, creating the very nonuniformity that a commission would hope to minimize. Hence, the actual federal sentencing system retains "a significant number of real offense elements," allowing adjustments based upon the facts of a defendant's case. Id., at 6. And the Commission is currently looking for new ways to create a better compromise. See, e.g., USSC, Amendments to the Sentencing Guidelines, at 24 (Apr. 2016) (effective Nov. 1, 2016) (creating a "sentence-imposed model for determining" whether prior convictions count for sentence-enhancement purposes in the context of certain immigration crimes).

With this background in mind, turn to the federal statute before us. The statute, reflecting the impossibility of knowing in detail the conduct that underlies a prior conviction, uses (in certain cases involving possession of weapons) the fact of certain convictions (including convictions for burglary) as (conclusive) indications that the present defendant has previously engaged in highly undesirable conduct. And, for the general reasons earlier described, it is practical considerations, not a general theory, that would prevent Congress from listing the specific prior conduct that would warrant a higher present sentence. Practical considerations, particularly of administration, can explain why Congress did not tell the courts precisely how to apply its statutory word "burglary." And similar practical considerations can help explain why this Court, in Taylor and later cases, described a modified categorical approach for separating the sheep from the goats. Those cases recognize that sentencing judges have limited time, they have limited information about prior convictions, and-within practical constraints-they must try to determine whether a prior conviction reflects the kind of behavior that Congress intended its proxy (i.e., "burglary") to cover.

The majority's approach, I fear, is not practical. Perhaps the statutes of a few States say whether words like "boat" or "building" stand for an element of a crime or a means to commit a crime. I do not know. I do know, however, that many States have burglary statutes that look very much like the Iowa statute before us today. See, e.g., Colo.Rev.Stat. §§ 18-4-101, 18-4-202, 18-4-203 (2015) ; Mont.Code Ann. §§ 45-2-101, 45-6-201, 45-6-204 (2015); N.H.Rev.Stat. Ann. § 635:1 (2015) ; N.D. Cent. Code Ann. §§ 12.1-22-02, 12.1-22-06 (2012); Ohio Rev.Code Ann. §§ 2909.01, 2911.11 -2911.13 (Lexis 2014) ; 18 Pa. Cons.Stat. Ann. §§ 3501, 3502 (2015); S.D. Codified Laws §§ 22-1-2, *226422-32-1, 22-32-3, 22-32-8 (2006) ; Wyo. Stat. Ann. §§ 6-1-104, 6-3-301 (2015) ; see also ALI, Model Penal Code §§ 221.0, 221.1 (1980); cf. Taylor, 495 U.S., at 598, 110 S.Ct. 2143 ("burglary" in the federal statute should reflect the version of burglary "used in the criminal codes of most States"). I also know that there are very few States where one can find authoritative judicial opinions that decide the means/element question. In fact, the Government told us at oral argument that it had found only "two States" that, in the context of burglary, had answered the means/elements question. Tr. of Oral Arg. 45; see id., at 37.

The lack of information is not surprising. After all, a prosecutor often will charge just one (e.g., a "building") of several statutory alternatives. See Descamps v. United States, 570 U.S. ----, ----, 133 S.Ct. 2276, 2283-2284, 186 L.Ed.2d 438 (2013). A jury that convicts, then, would normally have to agree unanimously about the existence of that particular fact. See Richardson, 526 U.S., at 818, 119 S.Ct. 1707 ("Our decision [whether something is an element or a means] will make a difference where ... the Government introduces evidence that the defendant has committed more underlying drug crimes than legally necessary to make up a 'series' "). Hence, it will not matter for that particular case whether the State, as a general matter, would categorize that fact (to which the statute refers) as an "element" or as a "means."

So on the majority's approach, what is a federal sentencing judge to do when facing a state statute that refers to a "building," a "boat," a "car," etc.? The charging documents will not answer the question, for-like the documents at issue here-they will simply charge entry into, say, a "building," without more. But see ante, at 2256 - 2257 (suggesting that a defendant's charging documents will often answer the question). The parties will have to look to other state cases to decide whether that fact is a "means" or an "element." That research will take time and is likely not to come up with an answer. What was once a simple matter will produce a time-consuming legal tangle. See, e.g., State v. Peterson, 168 Wash.2d 763, 769, 230 P.3d 588, 591 (2010) ( " 'There is simply no bright-line rule by which the courts can determine whether the legislature intended to provide alternate means of committing a particular crime. Instead, each case must be evaluated on its own merits' " (brackets omitted)); State v. Brown, 295 Kan. 181, 192, 284 P.3d 977, 987 (2012) (the "alternative means" definition is "mind-bending in its application"). That is why lower court judges have criticized the approach the majority now adopts. See, e.g., Omargharib v. Holder, 775 F.3d 192, 200 (C.A.4 2014) (Niemeyer, J., concurring) ("Because of the ever-morphing analysis and the increasingly blurred articulation of applicable standards, we are being asked to decide, without clear and workable standards, whether disjunctive phrases in a criminal law define alternative elements of a crime or alternative means of committing it.... I find it especially difficult to comprehend the distinction" (emphasis deleted)).

V

The majority bases its conclusion primarily upon precedent. In my view, precedent does not demand the conclusion that the majority reaches. I agree with the majority that our cases on the subject have all used the word "element" in contexts similar to the present context. But that fact is hardly surprising, for all the cases in which that word appears involved elements-or at least the Court assumed that was so. See Descamps, 570 U.S., at ----, n. 2, 133 S.Ct., at 2285, n. 2. In each of *2265those cases, the Court used the word generally, simply to refer to the matter at issue, without stating or suggesting any view about the subject of the present case. See, e.g., id., at ----, 133 S.Ct., at 2283 ("Sentencing courts may look only to the statutory definitions-i.e., the elements-of a defendant's prior offenses" (internal quotation marks omitted)); Shepard, 544 U.S., at 16-17, 125 S.Ct. 1254 (using the terms "statutory definition" and "statutory elements" interchangeably); Taylor, 495 U.S., at 602, 110 S.Ct. 2143 ("[A]n offense constitutes 'burglary' for purposes of [the Armed Career Criminal Act] if either its statutory definition substantially corresponds to 'generic' burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary").

The genius of the common law consists in part in its ability to modify a prior holding in light of new circumstances, particularly where, as Justice Holmes said, an existing principle runs up against a different principle that requires such modification. See Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). A fortiori, we should not apply this Court's use of a word in a prior case-a word that was not necessary to the decision of the prior case, and not intended to set forth a generally applicable rule-to a new circumstance that differs significantly in respect to both circumstances and the legal question at issue.

Does Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), require the majority's result here? There we held that any fact ("[o]ther than the fact of a prior conviction") that must be proved in order to increase the defendant's sentence above what would otherwise be the statutory maximum must be proved to a jury beyond a reasonable doubt. Id., at 490, 120 S.Ct. 2348. Where, as here, the State charges only one kind of "occupied structure"-namely, entry into a "garage"-that criterion is met. The State must prove to the jury beyond a reasonable doubt that the defendant unlawfully entered a garage. And that is so, whether the statute uses the term "garage" to refer to a fact that is a means or a fact that is an element. If the charging papers simply said "occupied structure," leaving the jury free to disagree about whether that structure was a "garage" or was, instead, a "boat," then we lack the necessary assurance about jury unanimity; and the sentencing judge consequently cannot use that conviction as a basis for an increased federal sentence. And that is true whether the state statute, when using the words "garage" and "boat," intends them to refer to a fact that is a means or a fact that is an element.

What about Descamps ? The statute there at issue made it a crime to "ente [r] certain locations with intent to commit grand or petit larceny or any felony." 570 U.S., at ----, 133 S.Ct., at 2282 (internal quotation marks omitted). The statute made no distinction between (1) lawful entry (e.g., entering a department store before closing time) and (2) unlawful entry (e.g., breaking into a store after it has closed). See ibid. The difference matters because unlawful entry is a critical constituent of the federal statute's version of "burglary." If the entry is lawful, the crime does not fall within the scope of that word.

We held that a conviction under this statute did not count as a "burglary" for federal purposes. We reasoned that the statute required the Government only to prove "entry," that there was no reason to believe that charging documents would say whether the entry was lawful or unlawful, and that, "most important[ly]," even if they did, the jury did not have to decide that *2266the entry was unlawful in order to convict (that is, any description in the charging document that would imply or state that the entry was illegal, say, at 2:00 in the morning, would be coincidental). Id., at ----, 133 S.Ct., at 2290 ; see id., at ----, 133 S.Ct., at 2288.

Here, by way of contrast, the charging documents must allege entry into an "occupied structure," and that "structure" can consist of one of several statutory alternatives. Iowa Code §§ 713.1, 702.12. The present law thus bears little resemblance to the hypothetical statute the majority describes. That hypothetical statute makes it a crime to break into a "premises" without saying more. Ante, at 2255 - 2256. Thus, to apply the federal sentencing statute to such a nonspecific, hypothetical statute would require sentencing judges to "imaginatively transfor[m]" "every element of [the] statute ... so that [the] crime is seen as containing an infinite number of sub-crimes corresponding to 'all the possible ways an individual can commit' " the crime-an impossibly difficult task. Descamps, 570 U.S., at ---- - ----, 133 S.Ct. at 2291.

But the Iowa statute before us contains explicit (not hypothetical) statutory alternatives, and therefore it is likely (not unlikely) that the charging documents will list one or more of these alternatives. Indeed, that is the case with each of Mathis' charging documents. See App. 60-73. And if the charging documents list only one of these alternatives, say, a "building," the jury normally would have to find unanimously that the defendant entered into a building in order to convict. See Bratthauer, 354 N.W.2d, at 776. To repeat my central point: In my view, it is well within our precedent to count a state burglary conviction as a "burglary" within the meaning of the federal law where (1) the statute at issue lists the alternative means by which a defendant can commit the crime (e.g., burgling a "building" or a "boat") and (2) the charging documents make clear that the state alleged (and the jury or trial judge necessarily found) only an alternative that matches the federal version of the crime.

Descamps was not that kind of case. It concerned a statute that did not explicitly list alternative means for commission of the crime. And it concerned a fact extraneous to the crime-the fact (whether entry into the burgled structure was lawful or unlawful) was neither a statutory means nor an element. As the Court in that case described it, the fact at issue was, under the state statute, a "legally extraneous circumstanc[e]" of the State's case. 570 U.S., at ----, 133 S.Ct., at 2288. But this case concerns a fact necessary to the crime (regardless of whether the Iowa Supreme Court generally considers that fact to be a means or an element).

Precedent, by the way, also includes Taylor . And, as I have pointed out, Taylor says that the modified categorical approach it sets forth may "permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary." 495 U.S., at 602, 110 S.Ct. 2143. Taylor is the precedent that I believe governs here. Because the majority takes a different view, with respect, I dissent.

Justice ALITO, dissenting.

Sabine Moreau lives in Solre-sur-Sambre, a town in Belgium located 38 miles south of Brussels. One day she set out in her car to pick up a friend at the Brussels train station, a trip that should have taken under an hour. She programmed her GPS and headed off. Although the GPS sent her south, not north, she apparently thought nothing of it. She dutifully stayed *2267on the prescribed course. Nor was she deterred when she saw road signs in German for Cologne, Aachen, and Frankfurt. "I asked myself no questions," she later recounted. "I kept my foot down."1

Hours passed. After crossing through Germany, she entered Austria. Twice she stopped to refuel her car. She was involved in a minor traffic accident. When she tired, she pulled over and slept in her car. She crossed the Alps, drove through Slovenia, entered Croatia, and finally arrived in Zagreb-two days and 900 miles after leaving her home. Either she had not properly set her GPS or the device had malfunctioned. But Ms. Moreau apparently refused to entertain that thought until she arrived in the Croatian capital. Only then, she told reporters, did she realize that she had gone off course, and she called home, where the police were investigating her disappearance.

Twenty-six years ago, in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), this Court set out on a journey like Ms. Moreau's. Our task in Taylor, like Ms. Moreau's short trip to the train station, might not seem very difficult-determining when a conviction for burglary counts as a prior conviction for burglary under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). But things have not worked out that way.

Congress enacted ACCA to ensure that violent repeat criminal offenders could be subject to enhanced penalties-that is, longer prison sentences-in a fair and uniform way across States with myriad criminal laws. See Descamps v. United States, 570 U.S. ----, ---- - ----, 133 S.Ct. 2276, 2301-2302, 186 L.Ed.2d 438 (2013) (ALITO, J., dissenting). ACCA calls for an enhanced sentence when a defendant, who has three or more prior convictions for a "violent felony," is found guilty of possession of a firearm. § 924(e)(1). And ACCA provides that the term "violent felony" means, among other things, "any crime punishable by imprisonment for a term exceeding one year ... that ... is burglary." § 924(e)(2)(B). In other words, "burglary" = "violent felony."

While this language might seem straightforward, Taylor introduced two complications. First, Taylor held that "burglary" under ACCA means offenses that have the elements of what the Court called "generic" burglary, defined as unlawfully entering or remaining in a building or structure with the intent to commit a crime. 495 U.S., at 598, 110 S.Ct. 2143. This definition is broader than that of the common law but does not include every offense that States have labeled burglary, such as the burglary of a boat or vehicle. Second, Taylor and subsequent cases have limited the ability of sentencing judges to examine the record in prior cases for the purpose of determining whether the convictions in those cases were for "generic burglary." See, e.g., *2268Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We have called this the "modified categorical approach." Descamps, supra, at ---- - ----, 133 S.Ct., at 2281-2282.

Programmed in this way, the Court set out on a course that has increasingly led to results that Congress could not have intended.2 And finally, the Court arrives at today's decision, the upshot of which is that all burglary convictions in a great many States may be disqualified from counting as predicate offenses under ACCA. This conclusion should set off a warning bell. Congress indisputably wanted burglary to count under ACCA; our course has led us to the conclusion that, in many States, no burglary conviction will count; maybe we made a wrong turn at some point (or perhaps the Court is guided by a malfunctioning navigator). But the Court is unperturbed by its anomalous result. Serenely chanting its mantra, "Elements," see ante, at 2251, the Court keeps its foot down and drives on.

The Court's approach calls for sentencing judges to delve into pointless abstract questions. In Descamps, the Court gave sentencing judges the assignment of determining whether a state statute is "divisible." See 570 U.S., at ----, 133 S.Ct., at 2293. When I warned that this novel inquiry would prove to be difficult, the opinion of the Court brushed off that concern, see id., at ----, 133 S.Ct., at 2285, n. 2 ("[W]e can see no real-world reason to worry"). But lower court judges, who must regularly grapple with the modified categorical approach, struggled to understand Descamps . Compare Rendon v. Holder, 764 F.3d 1077, 1084-1090 (C.A.9 2014) (panel opinion), with 782 F.3d 466, 466-473 (C.A.9 2015) (eight judges dissenting from denial of reh'g en banc), and id., at 473-474 (Kozinski, J., dissenting from denial of reh'g en banc). Now the Court tells them they must decide whether entering or remaining in a building is an "element" of committing a crime or merely a "means" of doing so. I wish them good luck.

The distinction between an "element" and a "means" is important in a very different context: The requisite number of jurors (all 12 in most jurisdictions) must agree that a defendant committed each element of an offense, but the jurors need not agree on the means by which an element was committed. So if entering or remaining in a building is an element, the jurors must agree that the defendant entered or remained in a building and not, say, a boat. But if the element is entering or remaining within one of a list of places specified in the statute (say, building, boat, vehicle, tent), then entering or remaining in a building is simply a means. Jurors do not need to agree on the means by which an offense is committed, and therefore whether a defendant illegally entered a building or a boat would not matter for purposes of obtaining a conviction.

In the real world, there are not many cases in which the state courts are required to decide whether jurors in a burglary case must agree on the building vs. boat issue, so the question whether buildings and boats are elements or means does not often arise. As a result, state-court *2269cases on the question are rare. The Government has surveyed all the state burglary statutes and has found only one-Iowa, the State in which petitioner was convicted for burglary-in which the status of the places covered as elements or means is revealed. See Brief for United States 43, and n. 13. Petitioner's attorneys have not cited a similar decision from any other State.

How, then, are federal judges sentencing under ACCA to make the element/means determination? The Court writes: "This threshold inquiry-elements or means?-is easy in this case, as it will be in many others." Ante, at 2256. Really?3 The determination is easy in this case only because the fortified legal team that took over petitioner's representation after this Court granted review found an Iowa case on point, but this discovery does not seem to have been made until the preparation of the brief filed in this Court. Brief for United States 43, and n. 13. "Petitioner's belated identification of a relevant state decision confirms that the task is not an easy one." Ibid . And that is not the worst of it. Although many States have burglary statutes like Iowa's that apply to the burglary of places other than a building, neither the Government nor petitioner has found a single case in any of these jurisdictions resolving the question whether the place burglarized is an element or a means.

The Court assures the federal district judges who must apply ACCA that they do not need such state-court decisions, that it will be easy for federal judges to predict how state courts would resolve this question if it was ever presented to them. Ante, at 2256 - 2257. But the Court has not shown how this can be done. The Government's brief cites numerous state statutes like Iowa's. Brief for United States 42, n. 12. If this task is so easy, let the Court pick a few of those States and give the lower court judges a demonstration.

Picking up an argument tossed off by Judge Kozinski, the Court argues that a federal sentencing judge can get a sense of whether the places covered by a state burglary statute are separate elements or means by examining the charging document. Ante, at 2256 - 2257 (citing Rendon, supra, at 473-474 (Kozinski, J., dissenting from denial of reh'g en banc)). If, for example, the charging document alleges that the defendant burglarized a house, that is a clue, according to the Court, that "house" is an element. See ibid . I pointed out the problem with this argument in Descamps . See 570 U.S., at ---- - ----, 133 S.Ct., at 2301-2302 (dissenting opinion). State rules and practices regarding the wording of charging documents differ, and just because something is specifically alleged in such a document, it does not follow that this item is an element and not just a means. See ibid .

The present case illustrates my point. Petitioner has five prior burglary convictions in Iowa. In Iowa, the places covered are "means." See ante, at 2254. Yet the charging documents in all these cases set out the specific places that petitioner burglarized-a "house and garage," a "garage," a "machine shed," and a "storage shed." See Brief for Petitioner 9.

A real-world approach would avoid the mess that today's decision will produce. Allow a sentencing court to take a look at the record in the earlier case to see if the *2270place that was burglarized was a building or something else. If the record is lost or inconclusive, the court could refuse to count the conviction. But where it is perfectly clear that a building was burglarized, count the conviction.

The majority disdains such practicality, and as a result it refuses to allow a burglary conviction to be counted even when the record makes it clear beyond any possible doubt that the defendant committed generic burglary. Consider this hypothetical case. Suppose that a defendant wishes to plead guilty to burglary, and the following occurs in open court on the record at the time of the plea:

PROSECUTOR: I am informed that the defendant wishes to plead guilty to the charge set out in the complaint, namely, "on June 27, 2016, he broke into a house at 10 Main Street with the intent to commit larceny."

DEFENSE COUNSEL: That is correct.

COURT: Mr. Defendant, what did you do?

DEFENDANT: I broke into a house to steal money and jewelry.

COURT: Was that the house at 10 Main St.?

DEFENDANT: That's it.

COURT: Now, are you sure about that? I mean, are you sure that 10 Main St. is a house? Could it have actually been a boat?

DEFENDANT: No, it was a house. I climbed in through a window on the second floor.

COURT: Well, there are yachts that have multiple decks. Are you sure it is not a yacht?

DEFENDANT: It's a little house.

PROSECUTOR: Your Honor, here is a photo of the house.

COURT: Give the defendant the photo. Mr. Defendant, is this the place you burglarized?

DEFENDANT: Yes, like I said.

COURT: Could it once have been a boat? Maybe it was originally a house boat and was later attached to the ground. What about that?

DEFENSE COUNSEL: Your honor, we stipulate that it is not a boat.

COURT: Well, could it be a vehicle?

DEFENDANT: No, like I said, it's a house. It doesn't have any wheels.

COURT: There are trailers that aren't on wheels.

DEFENSE COUNSEL: Your Honor, my client wants to plead guilty to burglarizing the house at 10 Main St.

PROSECUTOR: Your Honor, if necessary I will call the owners, Mr. and Mrs. Landlubbers-Stationary. They have lived there for 40 years. They will testify that it is a building. I also have the town's tax records. The house has been at that location since it was built in 1926. It hasn't moved.

COURT: What do you say, defense counsel? Are those records accurate?

DEFENSE COUNSEL: Yes, we so stipulate. Again, my client wishes to plead guilty to the burglary of a house. He wants to take responsibility for what he did, and as to sentencing,....

COURT: We'll get to that later. Mr. Defendant, what do you say? Is 10 Main St. possibly a vehicle?

DEFENDANT: Your Honor, I admit I burglarized a house. It was not a car or truck.

COURT: Well, alright. But could it possibly be a tent?

DEFENDANT: No, it's made of brick. I scraped my knee on the brick climbing up.

COURT: OK, I just want to be sure.

*2271As the Court sees things, none of this would be enough. Real-world facts are irrelevant. For aficionados of pointless formalism, today's decision is a wonder, the veritable ne plus ultra of the genre.4

Along the way from Taylor to the present case, there have been signs that the Court was off course and opportunities to alter its course. Now the Court has reached the legal equivalent of Ms. Moreau's Zagreb. But the Court, unlike Ms. Moreau, is determined to stay the course and continue on, traveling even further away from the intended destination. Who knows when, if ever, the Court will call home.

Farris, A.C.J.

Claude Gilbert Utter was. charged by an information filed January 16,1969, with the crime of murder in the second degree. He was convicted by a jury of the crime of manslaughter. He appeals from that conviction.

Appellant and the decedent, his son, were living together at the tune of the latter’s death. The son was seen to enter his father’s apartment and shortly after was heard to say, “Dad, don’t.” Shortly thereafter he was seen stumbling in the hallway of the apartment building where he collapsed, having been stabbed in the chest. He stated, “Dad stabbed me” and died before he could be moved or questioned further.

Mr. Utter entered the armed services in December of 1942 and was honorably discharged in October of 1946. He was a combat infantryman. As a result of his service, he was awarded a 60 per cent disability pension.

Appellant testified that on the date of his son’s death he began drinking during the morning hours. He was at the liquor store at 9 a.m. and purchased a quart of Thunderbird wine and a quart of port wine and drank the bottle of port wine with the exception of two drinks. Mr. Utter went for more liquor around noon. At that time he purchased 2 quarts of whiskey and 4 quarts of wine. Upon his return from the liquor store, he and another resident of the apartment “sat around drinking whiskey out of water glasses.” *139Appellant remembers drinking with his friend and the next thing he remembers was being in jail subsequent to the death of his son. He has no recollection of any intervening events.

Appellant introduced evidence on “conditioned response” during the trial. Conditioned response was defined by Dr. Jarvis, a psychiatrist, as “an act or a pattern of activity occurring so rapidly, so uniformly as to be automatic in response to a certain stimulus.” Mr. Utter testified that as a result of his jungle warfare training and experiences in World War II, he had on two occasions in the 1950’s reacted violently towards people approaching him unexpectedly from the rear.

The trial court ruled that conditioned response was not a defense in Washington and instructed the jury to disregard all evidence introduced on this subject. Appellant contends that this evidence was not introduced as a defense. In this assertion, appellant is incorrect since if the evidence was received and believed by the jury, the result would be his exculpation. Therefore, it must be considered to be a defense to the crime.

The major issue presented on appeal is whether it was error for the trial court to instruct the jury to disregard the evidence on conditioned response. The trial court held that the defendant was attempting to present a defense of irresistible impulse — a theory of criminal insanity that has consistently been rejected in this state. In so holding, the trial court considered the defense to be one of mental incapacity. This was not so.

There are two components of every crime. One is objective — the actus reus; the other subjective — the mens rea. The actus reus is the culpable act itself, the mens rea is the criminal intent with which one performs the criminal act. However, the mens rea does not encompass the entire mental process of one accused of a crime. There is a certain minimal mental element required in order to establish the actus reus itself. This is the element of volition. See Sim, The Involuntary Actus Reus, 25 Modern L. Rev. 741 (1962).

*140In the present case, the appellant was charged with second-degree murder and found guilty of manslaughter. The actus reus of both is the same — homicide. Thus, in order to establish either, the fact of homicide must first be established.

Appellant contends that his evidence was presented for the purpose of determining whether in fact a homicide had been committed. He argues that his evidence, if believed, establishes that no “act” was committed within the definition of homicide, RCW 9.48.010 (since amended by Laws of 1970, Ex. Ses., ch. 49, § 1, p. 333):

Homicide is the killing of a human being by the act, procurement or omission of another and is either (1) murder, (2) manslaughter, (3) excusable homicide or (4) justifiable homicide.

What is the meaning of the word “act” as used in this statute?

It is sometimes said that no crime has been committed unless the harmful result was brought about by a “voluntary act.” Analysis of such a statement will disclose, however, that as so used the phrase “voluntary act” means no more than the mere word “act.” An act must be a willed movement or the omission of a possible and legally-required performance. This is essential to the actus reus rather than to the mens rea. “A spasm is not an act.”

(Footnotes omitted.) R. Perkins, Criminal Law 660 (1957).

[A]n ‘act’ involves an exercise of the will. It signifies something done voluntarily. It necessarily implies intention. We find these statements abundantly sustained by the text-writers and decisions of our courts.

Heiman v. Pan American Life Ins. Co., 183 La. 1045, 1061, 165 So. 195 (1935). See also Stokes v. Carlson, 362 Mo. 93, 240 S.W.2d 132 (1951); Brown v. Standard Casket Mfg. Co., 234 Ala. 512, 175 So. 358 (1937); Duncan v. Landis, 106 F. 839 (3d Cir. 1901).

Thus, to invert the statement of Perkins, the word “act” technically means a “voluntary act.” See State v. Peterson, 73 Wn.2d 303, 438 P.2d 183 (1968).

*141It is the appellant’s contention that any of the alleged “acts” he committed were not those which involved mental processes, but rather were learned physical reactions to external stimuli which operated automatically on his autonomic nervous system. Although the theory sought to be presented by the appellant is similar to one of mental incapacity, it is nevertheless distinct from that concept.

automatistic acts are concomitants of mental disturbance of some kind. The mental disturbance may or may not be sufficient to establish legal insanity. Indeed, it would generally appear to be true that where the defendant’s acts are automatistic in character he cannot be said to have capacity to know their nature, and where he lacks capacity to know the nature of his acts, those acts must be said to be automatistic. Yet the automatistic acts may not be the result of a mental disease [Mr. Utter claims here that they are the result of military training] and hence not sufficient to constitute legal insanity. In any event, it is important to emphasize that whether or not the mental disturbance associated with the acts of automatism is equivalent to legal insanity, it is universally recognized that evidence of this character goes toward the exculpation of the accused, rather than mitigation to a lesser offense. And the exculpation is not of the qualified character attached to a verdict of not guilty on grounds of insanity. It is complete.

M. Paulsen and S. Kadish, Criminal Law and Its Processes. 347 (1962).

Appellant contends that a person in an automatistic or unconscious state is incapable of committing a culpable act —in this case, a homicidal act.

The question is not one of mental incapacity. “Criminal responsibility must be judged at the level of the conscious.” State v. Sikora, 44 N.J. 453, 470, 210 A.2d 193 (1965).

There is authority to support the proposition of the appellant.

Where, at the time of the killing, the slayer was clearly unconscious thereof, such unconsciousness will constitute a defense, as in the case of a homicide committed by one in a state of somnambulism, or while delirious from disease.

*142(Footnotes omitted.) O. Warren and B. Bilas, 1 Warren on Homicide § 61 (perm. ed. 1938).

If a person is in fact unconscious at the time he commits an act which would otherwise be criminal, he is not responsible therefor.

The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability.

(Footnotes omitted.) R. Anderson, 1 Wharton’s Criminal Law and Procedure § 50 (1957). A number of cases support these statements. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969); People v. Wilson, 66 Cal. 2d 749, 427 P.2d 820, 59 Cal. Rptr. 156 (1967); People v. Anderson, 63 Cal. 2d 351, 406 P.2d 43, 46 Cal. Rptr. 763 (1965); Watkins v. Commonwealth, 378 S.W.2d 614 (Ky. 1964); Carter v. State, 376 P.2d 351 (Okla. Crim. 1962); People v. Gorshen, 51 Cal. 2d 716, 336 P.2d 492 (1959); Corder v. Commonwealth, 278 S.W.2d 77 (Ky. 1955); People v. Baker, 42 Cal. 2d 550, 268 P.2d 705 (1954); Smith v. Commonwealth, 268 S.W.2d 937 (Ky. 1954); Fain v. Commonwealth, 78 Ky. 183, 39 Am. Rep. 213 (1879). See also, 22 C.J.S. Criminal Law § 55 (1961); 21 Am. Jur. 2d Criminal Law § 29 (1965).

In State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910) the Washington Supreme Court considered the constitutionality of a statute which withdrew the defense of insanity from those defenses that could be raised in this state. In holding the statute unconstitutional, the court made an extensive review of basic tenets of criminal law and noted in part as follows:

“All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt; the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable.

*143“Without the consent of the will, human actions cannot be considered as culpable; nor where there is no will to commit an offense, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offenses.”

State v. Strasburg, supra at 113.

An “act” committed while one is unconscious is in reality no act at all. It is merely a physical event or occurrence for which there can be no criminal liability. However, unconsciousness does not, in all cases, provide a defense to a crime. When the state of unconsciousness is voluntarily induced through the use and consumption of alcohol or drugs, then that state of unconsciousness does not attain the stature of a complete defense. Thus, in a case such as the present one where there is evidence that the accused has consumed alcohol or drugs, the trial court should give a cautionary instruction with respect to voluntarily induced unconsciousness.

The issue of whether or not the appellant was in an unconscious or automatistic state at the time he allegedly committed the criminal acts charged is a question of fact. Appellant’s theory of the case should have been presented to the jury if there was substantial evidence in the record to support it.

It is the function and province of the jury to weigh evidence and determine credibility of witnesses and decide disputed questions of fact. State v. Dietrich, 75 Wn.2d 676, 453 P.2d 654 (1969). However, a court should not submit to the jury an issue of fact unless there is substantial evidence in the record to support it. State v. Brooks, 73 Wn.2d 653, 440 P.2d 199 (1968); State v. Collins, 66 Wn.2d 71, 400 P.2d 793 (1965).

We find that the evidence presented was insufficient to present the issue of defendant’s unconscious or automatistic state at the time of the act to the jury. There is no evidence, circumstantial or otherwise from which the jury could determine or reasonably infer what happened in the room at the time of the stabbing; the jury could only speculate on the existence of the triggering stimulus.

*144Appellant contends that- it was error for the trial court to instruct the jury on manslaughter. This assignment of error is founded upon the allegation that the record contains no evidence to support such an instruction.

Manslaughter includes all homicides not falling within the definitions of murder in the first or second degree, or excusable or justifiable homicide. State v. Hedges, 8 Wn.2d 652, 113 P.2d 530 (1941). The trial court ruled that the homicide was neither justifiable nor excusable. Evidence was introduced regarding appellant’s drinking habits, the amount he drank that day, and the fact that he was an alcoholic. Evidence of voluntary intoxication can be presented as a defense to a crime where intent is an element. RCW 9.01.114; State v. Byers, 136 Wash. 620, 241 P. 9 (1925). Furthermore, criminal intent is not an element of manslaughter. State v. Brubaker, 62 Wn.2d 964, 385 P.2d 318 (1963); State v. Hopkins, 147 Wash. 198, 265 P. 481, 59 A.L.R. 688 (1928). The evidence regarding appellant’s drinking was sufficient to negative the criminal intent required for a conviction of second-degree murder and necessitated the giving of the manslaughter instruction. It was therefore proper for the trial court to so instruct the jury.

The trial court gave instruction 9:

The court instructs the jury that the law presumes that every man intends the natural and probable consequences of his own acts.

Appellant contends that this was a comment upon the evidence and denied him his right to a trial by jury. We do not agree. “Voluntary” is included in the definition of the word “act.”1 The insertion of the word “voluntary” might improve the instruction but it is not constitutionally required. Under our determination of the issues it was not error to submit the instruction.2

Affirmed.

James and Swanson, JJ., concur.

JUSTICE CERDA

delivered the opinion of the court:

The defendant, William J. Conley, was charged with two counts of aggravated battery based on permanent disability and great bodily harm. (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4(a).) He was found guilty after a jury trial of aggravated battery based solely on permanent disability on July 17, 1986. The defendant’s motions for judgment notwithstanding the verdict or a new trial were denied, and the defendant was sentenced to 30 months’ probation including 40 days of periodic imprisonment. On appeal, it is contended that: (1) the State failed to prove beyond a reasonable doubt that the victim incurred a permanent disability and that the defendant intended to inflict a permanent disability; (2) the trial court erred in prohibiting the defense from asking a State identification witness to describe the offender during defendant’s case in chief; (3) the trial court erred in allowing the admission of evidence elicited during State cross-examination that defense witnesses failed to tell police that the offender was another individual; (4) the State’s use during cross-examination and in closing argument of defendant’s pretrial silence deprived the defendant of a fair trial; and (5) the trial court erred in prohibiting defense counsel from arguing to the jury that the victim had a financial motive in securing a verdict and in telling the jury that financial motive was not in issue. For the following reasons, we affirm.

The defendant was charged with aggravated battery in connection with a fight which occurred at a party on September 28, 1985, in unincorporated Orland Township. Approximately 200 high school students attended the party and paid admission to drink unlimited beer. One of those students, Sean O’Connell, attended the party with several friends. At some point during the party, Sean’s group was approached by a group of 20 boys who apparently thought that someone in Sean’s group had said something derogatory. Sean’s group denied making a statement and said they did not want any trouble. Shortly thereafter, Sean and his friends decided to leave and began walking toward their car which was parked a half block south of the party.

A group of people were walking toward the party from across the street when someone from that group shouted “There’s those guys from the party.” Someone emerged from that group and approached Sean, who had been walking with his friend Marty Carroll *23810 to 15 steps behind two other friends, Glen Mazurowski and Dan Scurio. That individual demanded that Marty give him a can of beer from his six-pack. Marty refused, and the individual struck Sean in the face with a wine bottle, causing Sean to fall to the ground. The offender attempted to hit Marty, but missed as Marty was able to duck. Sean sustained broken upper and lower jaws and four broken bones in the area between the bridge of his nose and the lower left cheek. Sean lost one tooth and had root canal surgery to reposition 10 teeth that had been damaged. Expert testimony revealed that Sean has a permanent condition called mucosal mouth and permanent partial numbness in one lip. The expert also testified that the life expectancy of the damaged teeth might be diminished by a third or a half.

At trial, the State presented Officer Houlihan, Doctor Arnold S. Morof, and five occurrence witnesses. Of the five occurrence witnesses, only Marty Carroll identified Conley as the offender. The only other witness connecting Conley to the crime was another student, Demetrius Kereakas, who testified that he saw Conley throw a bottle at Dan Scurio’s car as the four boys left after the incident. The defense recalled State witness Marty Carroll and presented seven witnesses in addition to the defendant. Four of the defense witnesses testified that the defendant was not the offender, but rather that Sean was hit by a Robert Frazer, who is known in school as “Crazy Bob” or “Terminator.” The party was held at a residence surrounded by open fields. There were no streetlights and most of the witnesses had been drinking before the incident.

At the end of the trial, the jury was furnished with four verdict forms for the two counts of aggravated battery. The jury returned a guilty verdict for aggravated battery based on permanent disability, failing to sign the remaining verdict forms. The State’s Attorney advised the trial judge that the jury had returned only one verdict but that he had no objections. The trial court accepted the verdict and discharged the jury. It must be noted here that when a verdict on less than all the counts is accepted by the trial court and the jury is discharged, the jury’s silence as to other counts is treated as an acquittal on those counts for purposes of double jeopardy. (People v. Thurman (1983), 120 Ill. App. 3d 975, 979, 458 N.E.2d 1038, aff’d in part and rev’d in part on other grounds (1984), 104 Ill. 2d 326, 472 N.E.2d 414; People v. Rollins (1982), 108 Ill. App. 3d 480, 485, 438 N.E.2d 1322.) Therefore, had this court found it necessary to reverse and remand for a new trial, the defendant could not have been retried for aggravated battery based on great bodily harm.

*239 The defendant initially contends on appeal that the State failed to prove beyond a reasonable doubt that Sean O’Connell incurred a permanent disability. Section 12 — 4(a) of the Criminal Code of 1961 provides that: “[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.” (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4(a).) The defendant contends there must be some disabling effect for an aggravated battery conviction based on permanent disability. The defendant does not dispute that Sean lost a tooth or that surgery was required to repair damaged teeth. The defendant also does not dispute that Sean will have permanent partial numbness in one lip or suffer from a condition called mucosal mouth. The defendant maintains, however, that there is no evidence as to how these injuries are disabling because there was no testimony of any tasks that can no longer be performed as a result of these injuries.

The parties cite no Illinois decisions, nor have we found any, defining permanent disability in the context of aggravated, battery. The State relies on People v. Post (1982), 109 Ill. App. 3d 482, 440 N.E.2d 631, and People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473, for the proposition that loss of function is not required for a finding of permanent disability. In Post, the victim had been stabbed once in the back and three times in the leg, but incurred only permanent scarring. The court affirmed the defendant’s conviction for aggravated battery based on permanent disability. However, Post is not dispositive of the issue as the defendant was also convicted of aggravated battery based on great bodily harm and disfigurement, and the defendant never raised the issue of sufficiency of the evidence regarding permanent disability. In Hicks, a young girl received severe burns on her chest caused by boiling water. Hicks is also not dispositive of the issue as the defendant was convicted of heinous battery. Thus, as the defendant points out in his reply brief, this appears to be a question of first impression.

The function of the courts in construing statutes is to ascertain and give effect to the intent of the legislature. (People v. Steppan (1985), 105 Ill. 2d 310, 316, 473 N.E.2d 1300.) The starting point for this task is the language itself (People v. Boykin (1983), 94 Ill. 2d 138, 141, 455 N.E.2d 1174), and the language should be given its plain and ordinary meaning. (Steppan, 105 Ill. 2d at 317; People v. Pettit (1984), 101 Ill. 2d 309, 313, 461 N.E.2d 991.) The defendant urges the court to adopt the definition found in Webster’s Third New International Dictionary which defines disability as an “inability to do *240something.” The State refers to additional language from the same source that a disability is a “physical or mental illness, injury, or condition that incapacitates in any way.” (Webster’s Third New International Dictionary 642 (1986).) There is some support for defendant’s proposed definition in an old Illinois decision. In Dahlberg v. People (1907), 225 Ill. 485, 80 N.E. 310, a woman was convicted of assault with intent to commit mayhem (aggravated battery incorporates the earlier offense of mayhem) after she threw red pepper at someone’s eyes and missed, hitting an innocent bystander in the eyes instead. Her conviction was reversed because the crime of attempt requires that the offender employ adequate means to accomplish the attempted result, and the evidence revealed that blindness could not have resulted had she succeeded. (Dahlberg, 225 Ill. at 490.) Thus, by necessary implication, anything short of blindness would not have supported a conviction for mayhem.

In arriving at a definition, however, it is also proper to consider the statute’s purpose and the evils sought to be remedied. (Steppan, 105 Ill. 2d at 316.) The Committee Comment explains that section 12 — 4(a) incorporates the old offense of mayhem. (Ill. Ann. Stat., ch. 38, par. 12 — 4(a), Committee Comment at 465 (Smith-Hurd 1979).) At common law the offense of mayhem required the dismemberment or disablement of some bodily part. Initially, the law sought to protect the King’s right to the military services of his subjects. However, modern criminal codes have expanded their protection against a wider range of injuries. As one court explained:

“What, then, originated as the narrow common law offense of mayhem is generally today a statutory offense of considerably larger dimensions. The transition has been accompanied, if not induced, by a shift in emphasis from the military and combative effects of the injury to' the preservation of the human body in normal functioning. The statutory counterparts of non-statutory mayhem doubtless include all that the common law proscribed. But what is important now is not the victim’s capacity for attack or defense, but the integrity of his person.” (Emphasis added.) (United States v. Cook (D.C. Cir. 1972), 462 F.2d 301, 303.)

Under this view, it seems apparent that for an injury to be deemed disabling, all that must be shown is that the victim is no longer whole such that the injured bodily portion or part no longer serves the body in the same manner as it did before the injury. Applying this standard to the case at hand, the injuries Sean O’Connell suffered are sufficient to constitute a permanent disability. Sean will en*241dure permanent partial numbness in one lip and mucosal mouth.1 He lost one tooth and there is also a chance he may lose some teeth before attaining the age of seventy.

The defendant further argues that the State failed to prove beyond a reasonable doubt that he intended to inflict any permanent disability. The thrust of defendant’s argument is that under section 12 — 4(a), a person must intend to bring about the particular harm defined in the statute. The defendant asserts that while it may be inferred from his conduct that he intended to cause harm, it does not follow that he intended to cause permanent disability. The State contends it is not necessary that the defendant intended to bring about the particular injuries that resulted. The State maintains it met its burden by showing that the defendant intentionally struck Sean.

The law on this question is unclear. The defendant relies upon People v. Crosser (1983), 117 Ill. App. 3d 24, 27, 452 N.E.2d 857, and Bay State Insurance Co. v. Wilson (1982), 108 Ill. App. 3d 1096, 440 N.E.2d 131, which both hold that aggravated battery is a specific intent crime. The State, however, relies upon People v. Allen (1969), 117 Ill. App. 2d 20, 254 N.E.2d 103. In Allen, the court wrote that in committing the offense of aggravated battery, “the only mental state required is that the accused knowingly and intentionally cause the social harm defined in the statute, no premeditation or malice being necessary.” (Allen, 117 Ill. App. 2d at 27-28.) The court then went on to state that it is not necessary that the defendant intended to cause the particular injury which resulted. (Allen, 117 Ill. App. 2d at 28.) Resolution of this issue is made difficult as there exist inconsistent decisions within the first district. Allen is cited with approval by the third division in People v. Perry (1974), 19 Ill. App. 3d 254, 259, 311 N.E.2d 341; however, specific intent analysis is applied in another decision by the third division in People v. Farrell (1980), 89 Ill. App. 3d 262, 264-65, 411 N.E.2d 927. The fifth division has also produced inconsistent decisions. In People v. Gomez (1986), 141 Ill. App. 3d 935, 939, 491 N.E.2d 68, it was stated that aggravated battery is a specific intent crime. However, just the opposite was written in People v. Gvojic (1987), 160 Ill. App. 3d 1065, 1069, 513 N.E.2d 1083.

For proper resolution of this issue, it is best to return to the statutory language. Section 12 — 4(a) employs the terms “inten*242tionally or knowingly” to describe the required mental state. The relevant statutes state:

“4 — 4. Intent. A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4.)

“4 — 5. Knowledge. A person knows or acts knowingly or with knowledge of:

(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5.)

Section 12 — 4(a) defines aggravated battery as the commission of a battery where the offender intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement. Because the offense is defined in terms of result, the State has the burden of proving beyond a reasonable doubt that the defendant either had a “conscious objective” to achieve the harm defined, or that the defendant was “consciously aware” that the harm defined was “practically certain to be caused by his conduct.” (See People v. Herr (1980), 87 Ill. App. 3d 819, 821, 409 N.E.2d 442.) This is the identical construction found in People v. Farrell (1980), 89 Ill. App. 3d 262, 264-65, 411 N.E.2d 927, which we conclude is the correct statement of the law.

Although the State must establish the specific intent to bring about great bodily harm, or permanent disability or disfigurement under section 12 — 4(a), problems of proof are alleviated to the extent that the ordinary presumption that one intends the natural and probable consequences of his actions shifts the burden of production, though not persuasion, to the defendant. (Farrell, 89 Ill. App. 3d at 265.) If the defendant presents evidence contrary to the presumption, then the presumption ceases to have effect, and the trier of fact considers all the evidence and the natural inferences drawn therefrom. (Farrell, 89 Ill. App. 3d at 265.) Intent can be inferred from the surrounding circumstances, the offender’s words, the weapon used, and the force of the blow. (See, e.g., Macklin v. Commonwealth Life & Accident Co. (1970), 121 Ill. App. 2d 119, 126-27, 257 N.E.2d 256.) As the defendant’s theory of the case was mistaken identity, there was no evidence introduced negating the presumption of intent. However, even if Conley had denied any intention to inflict permanent disability, the surrounding circumstances, the use of a bot-*243tie, the absence of warning and the force of the blow are facts from which the jury could reasonably infer the intent to cause permanent disability. Therefore, we find the evidence sufficient to support a finding of intent to cause permanent disability beyond a reasonable doubt.

The defendant next contends that the trial court improperly restricted the scope of his examination of State witness Marty Carroll during his case in chief. During the evening following the close of the prosecution’s case, Conley remembered having a conversation with Carroll at another party where Carroll allegedly made a statement inconsistent with his testimony. Advised of this development, the trial judge permitted the defendant to recall Carroll so that a foundation could be established for later impeachment when Conley testified. After a foundation had been laid, the trial court prohibited the defendant from pursuing an additional line of questioning when the State objected to questions asking Carroll to describe the offender.

The defendant’s argument assumes that People v. Aughinbaugh (1967), 36 Ill. 2d 320, 223 N.E.2d 117, and People v. Morris (1964), 30 Ill. 2d 406, 197 N.E.2d 433, are controlling. These decisions hold that where identification is a principal issue at trial, the defendant is entitled to wide latitude in conducting cross-examination of identification witnesses. These decisions, however, are limited to cross-examination during the State’s case in chief. It is well established in Illinois that the decision to recall a witness for further cross-examination after the close of the adversary’s case is within the sound discretion of the trial court. (People v. Smith (1986), 149 Ill. App. 3d 145, 152, 500 N.E.2d 605.) The trial court’s decision on this matter will not be reversed absent a clear abuse of discretion. (Smith, 149 Ill. App. 3d at 152.) In People v. Dorsey (1982), 109 Ill. App. 3d 218, 440 N.E.2d 394, the defendant argued that his right to due process was violated when the trial court denied his request to recall three witnesses for additional cross-examination in his case in chief. The court held that there was no abuse of discretion where the defendant had an opportunity to cross-examine the witnesses, the questions the defendant wished to ask could have been presented at defendant’s previous cross-examination during the State’s case, and the evidence the defendant hoped to introduce had little probative value. (Dorsey, 109 Ill. App. 3d at 229. See also People v. Lewis (1980), 89 Ill. App. 3d 840, 845, 412 N.E.2d 565.) Here, the defendant had an opportunity to cross-examine Marty Carroll during the State’s case and his questions regarding the offender’s description *244should have been presented at that time. Therefore, there was no abuse of discretion in prohibiting the defendant from pursuing this line of questioning.

Next, the defendant argues that the trial court erred in permitting improper impeachment of four defense witnesses. Matt Tanzer, Kevin McGinley, and Joseph Longhini testified they were present when Sean was hit and that Bob Frazer, and not the defendant, was the culprit. Scott Bucich testified that he observed the defendant in a different altercation not involving Sean. On cross-examination, the witnesses admitted they failed to volunteer this information to the police which may have exonerated the defendant. The defendant maintains that the trial court erroneously overruled his objections for lack of foundation because there was no showing that the police or other authority ever questioned these witnesses. The defendant relies on People v. Fabian (1976), 42 Ill. App. 3d 934, 356 N.E.2d 982, construing that decision to hold that a witness’ failure to volunteer knowledge of a murderer’s identity to police during earlier conversations was not impeaching because the police never inquired as to his ability to identify the offender. Defendant’s reliance on Fabian is misplaced, however, as the issue in Fabian was the weight, and not the admissibility, of the evidence in determining whether the defendant was proved guilty beyond a reasonable doubt. Fabian, 42 Ill. App. 3d at 938.

The rule for impeachment by omission is that it is permissible to use prior silence to discredit a witness’ testimony if: (1) it is shown that the witness had an opportunity to make a statement, and (2) under the circumstances, a person would normally have made the statement. (People v. McMath (1968), 104 Ill. App. 2d 302, 315, 244 N.E.2d 330, affd (1970), 45 Ill. 2d 33, 256 N.E.2d 835, cert. denied (1970), 400 U.S. 846, 27 L. Ed. 83, 91 S. Ct. 92.) At issue here is whether the State properly established the required evidentiary foundation for this impeachment. In People v. Taylor (1986), 141 Ill. App. 3d 839, 491 N.E.2d 3, two defense witnesses testified that the victim of a shooting had been shot by his own brother, and not by the defendant, when the brother fired a gun into a crowd during a street altercation. The witnesses admitted on cross-examination that they failed to go to the police with this information which may have exonerated the defendant. The court held this impeachment was proper because the witnesses, who were friends of the defendant, knew of the defendant’s arrest eight months before trial. (Taylor, 141 Ill. App. 3d at 845-46.) And in People v. Martinez (1979), 76 Ill. App. 3d 280, 284-85, 395 N.E.2d 86, this court ruled that a prosecu*245tor’s questions regarding a witness' failure to go to the police were permissible where the witness who was a friend of the accused waited eight months to tell his story supporting the defendant’s claim of self-defense. On the other hand, in People v. Watson (1981), 94 Ill. App. 3d 550, 557-58, 418 N.E.2d 1015, similar impeachment of an alibi witness was held improper for lack of foundation where the witness did not learn of the defendant’s alleged crime until five months after his arrest, and the State did not attempt to interview the witness despite receiving notice of defendant’s alibi defense. Read together, these decisions indicate that where a witness is a friend of the accused, and has had knowledge of the friend’s arrest before trial, evidence of the witness’ failure to give exculpatory information to the authorities is admissible to impeach an exculpatory story offered for the first time at trial. However, where the witness has not had sufficient notice, there must be evidence of other circumstances under which a reasonable person would have given exculpatory information to the authorities. For the case before us, resolution of this issue requires an examination of the pertinent testimony of each witness.

Matt Tanzer testified that he was a close friend of the defendant. Tanzer also testified that he had discussed the case with the defendant and other friends before trial. Although there was no testimony elicited on cross-examination as to how much time had elapsed before trial during which Tanzer knew of the defendant’s arrest, we do not believe this less than perfect examination to be reversible error. Thus, a sufficient foundation was established for impeaching Tanzer.

Joseph Longhini testified he had only known the defendant for less than a year and was not a close friend. However, Longhini also testified that he discussed the case with the defendant before trial and told him he would be available if the defendant needed him. Thus, a sufficient foundation was established.

Kevin McGinley testified that he was a close friend of the defendant. However, in addition to the absence of testimony indicating when he first learned of the defendant’s arrest, there was also no testimony that he had discussed the case with anyone. Moreover, no investigators for the police or the State ever questioned McGinley as to what he knew. Therefore, use of his prior silence was improper for lack of foundation.

Scott Bucich testified that he had known the defendant for a number of years. Bucich also testified that he discussed the case with the defendant before trial when the defendant called him to learn what Bucich knew of the incident. However, Bucich was a witness *246only to the defendant’s altercation with another individual named John O’Brien. Under these circumstances, a friend of the accused would not normally go to the police to volunteer information pertaining to a separate fight. Thus, the use of Bucich’s prior inaction was improper.

• 14, 15 Nonetheless, this court finds these errors to be harmless. Error is harmless where a reviewing court can safely conclude, after consideration of the totality of the evidence, that a trial without the error would not produce a different result. (People v. Warmack (1980), 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254.) To say that the failure of McGinley and Bucich to volunteer information to the police affected the outcome of the case is speculative, especially in view of the fact that Tanzer and Longhini were properly impeached.

The fourth issue raised by the defendant is whether the State improperly used the defendant’s pretrial silence to impeach his mistaken identity theory in violation of the due process clause of the fourteenth amendment and Illinois evidentiary law. The State sought to discredit the mistaken identity theory as a recent fabrication since the defendant failed to inform the police about Bob Frazer, who the defendant claimed at trial to be the true offender. Examination of this issue must be in two parts as reference was made at trial to two separate occasions where the defendant did not inform the police of the identity of the individual claimed to be the true offender. We first address the State’s use of the defendant’s pre-arrest silence.

On October 7, Officer Houlihan visited Andrew High School and obtained permission to interview the defendant. Houlihan read the Miranda warnings to the defendant before proceeding with the interview. There was conflicting testimony as to what exactly the defendant had said during his interrogation at Andrew High School. Investigator Houlihan testified that Conley admitted to striking an individual he didn’t know with his fist and that the individual fell to the ground. The defendant, however, testified that he had told Houlihan that he fought an individual by the name of John O’Brien and that he gave a description of O’Brien to Houlihan. The defendant further testified that Houlihan stated he had a report of only one fight involving Sean O’Connell and asked him why his fight had not been reported. Conley responded that he didn’t know but that it probably was not reported because no one was hurt. Nevertheless, it is clear that Conley never mentioned the name of Bob Frazer to Houlihan when questioned about his activities at the party and that this fact was elicited during his cross-examination. The record reveals the following colloquy:

*247“Q. And so you saw Marty Carroll at the second Sandora party that you made?

A. Yes, I did.

Q. And he was pointing a finger at you?

A. He sure did.

Q. He said, ‘That’s the guy who hit Shawn with the bottle.’

A. Yes.

Q. You said to him, ‘It wasn’t me. I know who did it.’ Didn’t you say that?

A. Yes, I did.

Q. And you told Officer Houlihan who that was, didn’t you?

A. No, I did not tell him.

Q. I have nothing further.”

The defendant did not object to the State’s question because he felt that his silence could be adequately explained. On redirect, the defendant testified that he had not learned of Bob Frazer until two to three weeks after his interview with Houlihan. The defendant now argues that the State’s use of this silence was improper under Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. In Doyle v. Ohio, the United States Supreme Court held that use of a defendant’s post-arrest silence to impeach his exculpatory testimony offered for the first time at trial is a deprivation of due process of law. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.) The court reasoned that silence following recitation of the Miranda warnings may be nothing more than the arrestee’s exercise of those rights and, therefore, post-arrest silence is always “insolubly ambiguous.” (Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244.) The Court further reasoned that implicit in the Miranda warnings is the promise that silence will carry no penalty should the accused invoke that right. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Therefore, the Court concluded that it would be fundamentally unfair to permit use of such silence against the accused after inducing him to remain silent. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Because Conley was successfully rehabilitated on redirect (cf. United States v. Wilkins (7th Cir. 1981), 659 F.2d 769, 776), we conclude that if the State’s use of Conley’s pre-arrest silence violated Doyle, such error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

• 17 Following redirect, however, the State again sought to impeach the defendant’s mistaken identity theory on recross, using the defendant’s post-arrest silence. On October 16, nine days after his in*248terview with Houlihan, the defendant participated in a lineup. At the conclusion of the lineup, the defendant was placed under arrest at which time no statements were made. The record does not reveal whether the defendant was advised of his Miranda rights, but it appears that Conley was not so advised immediately upon his arrest. Following the defendant’s rehabilitation on redirect, the State countered on recross with a reference to the defendant’s silence following his arrest. The record reveals the following colloquy:

“Q. You saw Houlihan on October the 16th, didn’t you?

A. I believe that was the date for the line-up. I’m not sure.

Q. And after the lineup, that’s when Officer Houlihan told you you’re under arrest, isn’t that right?

A. I believe so.

Q. And at that time you didn’t tell officer — .

DEFENSE COUNSEL: I’m objecting now.

THE COURT: Sustained.

PROSECUTOR: I have nothing further, Judge.”

The State contends, first, that its reference to Conley’s post-arrest silence did not deprive him of due process because he had not been advised of his Miranda rights upon arrest. The State relies upon Fletcher v. Weir (1982), 455 U.S. 603, 71 L. Ed. 2d 490, 102 S. Ct. 1309, which held that cross-examination as to post-arrest silence is permissible where such silence has not been induced by the governmental assurances embodied in the Miranda warnings. (Fletcher, 455 U.S. at 607, 71 L. Ed. 2d at 494, 102 S. Ct. at 1312.) The State also contends there was no “use” of silence because the State was prevented from completing the question when the trial court sustained the defendant’s objection, and the jury was instructed to disregard questions to which objections were sustained. (See Greer v. Miller (1987), 483 U.S. 756, 97 L. Ed. 2d 618, 107 S. Ct. 3102.) The defendant argues, however, that Fletcher is inapplicable because he had been advised of his Miranda rights nine days before his arrest at the October 7 interview. The defendant further contends that Greer v. Miller is inapposite because, unlike Greer, the trial court failed to immediately admonish the jury after sustaining his objection, and the prosecutor defied the trial court by mentioning the defendant’s silence in rebuttal argument. On the other hand, the defendant contends that the State’s inquiry into his post-arrest silence is in violation of Illinois evidentiary law even if he has not been deprived of due process. (See People v. McMullin (1985), 138 Ill. App. 3d 872, 486 N.E.2d 412.) Because Doyle establishes only a minimum constitutional threshold for fairness under the due process clause, each juris*249diction is free to define for itself when silence is more probative than prejudicial under its rules of evidence. (See Jenkins v. Anderson (1980), 447 U.S. 231, 240, 65 L. Ed. 2d 86, 96, 100 S. Ct. 2124, 2130.) The defendant’s silence was not admitted into evidence, however, as the trial court sustained the defendant’s objection. Thus, the defendant’s argument on this point is without merit.

We decline to hold that the Miranda warnings Conley received at the October 7 interrogation induced him to remain silent upon his arrest nine days later. Initially, we note that had Conley made incriminating statements during a second interrogation following arrest without being advised of his Miranda rights, Conley would be taking a position contrary to the one he advocates here— that is, Conley would be arguing that the Miranda warnings given nine days earlier are insufficient. (See People v. Rosario (1972), 4 Ill. App. 3d 642, 645-46, 281 N.E.2d 714.) Moreover, Conley agreed to talk with Officer Houlihan on October 7. If the Miranda warnings did not induce him to remain silent on October 7, then we cannot say those same warnings induced him to remain silent nine days later. Therefore, on the facts presented here, we do not believe Doyle applies.

Nonetheless, we further find that there was no “use” of the defendant’s post-arrest silence. In Greer v. Miller, the Supreme Court stated it was significant that in each of the cases in which it applied Doyle, the trial court had “permitted specific inquiry or argument respecting the defendant’s post-Miranda silence.” (Greer v. Miller, 483 U.S. at 764, 97 L. Ed. 2d at 629, 107 S. Ct. at 3108.) The Court concluded there was no Doyle violation because the trial court sustained the defendant’s objection, no further comments were made during the remainder of the trial, and the trial court instructed the jury to disregard questions to which objections were sustained. (Greer, 483 U.S. at 764, 97 L. Ed. 2d at 629, 107 S. Ct. at 3108.) Here, the trial court did not permit specific inquiry or argument. As in Greer, Conley’s objection was sustained. The jury was also instructed to disregard questions to which objections were sustained, and unlike Greer, the question posited to Conley was never completed. As to the prosecutor’s comment during rebuttal argument, the trial court sustained Conley’s objection and, thus, argument respecting Conley’s silence was not permitted.

The defendant distinguishes Greer on the ground that the trial court here did not admonish the jury after sustaining his objection. A careful reading of Greer reveals, however, that the admonishment referred to by the defendant was only a direction to “ignore [the] ques*250tion for the time being.” (Greer, 483 U.S. at 759, 97 L. Ed. 2d at 626, 107 S. Ct. at 3105.) No specific instruction was given. Further, as in Greer, Conley failed to request the trial court to give a specific instruction. (Greer, 483 U.S. at 764 n.5, 97 L. Ed. 2d at 629 n.5, 107 S. Ct. at 3108 n.5.) Therefore, we hold there was no specific inquiry or argument respecting Conley’s silence.

The defendant’s fifth and final contention is that he was improperly precluded from arguing to the jury that Sean’s family had a financial motive in securing a verdict due to the extensive dental work that had been performed. The defendant was attempting to discredit the credibility of State witness Demetrius Kereakas, who had testified that he identified Conley from a picture in an Andrew High School yearbook. The testimony revealed that Mr. O’Connell had visited Demetrius at Richards High School where Mr. O’Connell had given Demetrius the yearbook. The defendant argues that Kereakas’ credibility is suspect because no one besides Mr. O’Connell was present when Kereakas made the identification, and Mr. O’Connell may have pressured Kereakas into picking Conley.

Closing argument must be based on the evidence or on the reasonable inferences drawn therefrom. (People v. Bullock (1987), 154 Ill. App. 3d 266, 273, 507 N.E.2d 44.) The defendant correctly states that financial bias is a legitimate method of impeaching the credibility of a witness. (People v. Thompson (1979), 75 Ill. App. 3d 901, 903, 394 N.E.2d 422, 425.) Here, however, the individual with the alleged financial bias is Mr. O’Connell, who did not testify. Demetrius Kereakas has no financial interest, and Mr. O’Connell’s bias cannot be transferred to Kereakas. There was no evidence that Mr. O’Connell pressured Kereakas or engaged in suggestive conduct which could have led Kereakas to Conley’s photograph. Therefore, the trial court properly sustained the State’s objection to the defendant’s remarks.

The judgment of the circuit court is affirmed.

Judgment affirmed.

FREEMAN, P.J., and WHITE, J., concur.

*817OPINION

MEYER, Justice.

We are asked to decide whether knowledge of possession of a pistol is an element of the crime of possession of a pistol in public, Minn.Stat. § 624.714, subd. la (2010). Respondent Christian Chi Ndikum was charged with possession of a pistol in public after he carried a briefcase containing a gun into a courthouse. At trial, Ndikum argued that he did not know the gun was in his briefcase. Ndikum requested that the district court instruct the jury that knowledge of possession is an element of the crime of possession of a pistol in public that the State must prove. The district court refused to so instruct the jury, and the jury found Ndikum guilty of the crime of possession of a pistol in public. The court of appeals reversed Ndi-kum’s conviction, concluding that the State had to prove knowledge of possession of a pistol as an element of the crime of possession of a pistol. We affirm the court of appeals.

I.

Ndikum is a licensed attorney in the state of Minnesota with a law office in Minneapolis. In May 2009 several incidents in his neighborhood led Ndikum to fear for his and his family’s safety. As a result, Ndikum obtained a permit from the Hennepin County Sheriffs Office to purchase a gun. When he purchased a gun on July 23, 2009, the gun dealer informed Ndikum that Ndikum could carry the gun between his home and office without obtaining a permit to carry the gun in public. See Minn.Stat. § 624.714, subd. 9(3) (2010). Ndikum testified that he only carried the gun between his home and office because he did not have a permit to carry.

On September 9, 2009, Ndikum entered the Hennepin County Family Justice Center for a court hearing. As Ndikum’s briefcase went through the X-ray scanner at the courthouse, a security officer noticed what looked like a revolver inside the briefcase. In a search of the briefcase, a bag containing Ndikum’s gun was discovered. Ndikum admitted to owning the gun but maintains that he did not know the gun was in his briefcase on September 9.

Ndikum was charged by complaint with two counts: possession of a dangerous weapon within a courthouse complex, a felony, MinmStat. § 609.66, subd. lg (2010), and possession of a pistol in public, a gross misdemeanor, Minn.Stat. § 624.714, subd. la. The complaint was later amended to add a third count: reckless handling of a gun, a misdemeanor, Minn.Stat. § 609.66, subd. 1(a)(1) (2010). Ndikum’s wife testified at trial that she placed the gun in Ndikum’s briefcase before Ndikum left home to go to work. Ndikum testified that he did not know the gun was in his briefcase when he entered the Family Justice Center.

Ndikum requested that the district court instruct the jury that knowledge is an element of both the felony and gross misdemeanor counts.1 The court agreed to instruct the jury that an element of felony possession of a dangerous weapon in a courthouse is that “the defendant knew or *818reasonably should have known he possessed a dangerous weapon.” On the gross misdemeanor possession of a pistol in public charge, the court merely instructed the jury that the defendant must have “carried, held, or possessed a pistol.” The court did not instruct the jury that knowledge was an element of the gross misdemeanor charge. The jury found Ndikum not guilty of felony possession of a dangerous weapon in a courthouse and misdemeanor reckless handling of a weapon, but it found him guilty of gross misdemeanor possession of a pistol in public.

Ndikum appealed to the court of appeals and argued that the district court erred by refusing to instruct the jury that knowledge of possession of a pistol was an element of gross misdemeanor possession of a pistol in public. The court of appeals agreed and reversed Ndikum’s conviction. State v. Ndikum, 802 N.W.2d 844, 849 (Minn.App.2011). The State appealed and we granted review.

II.

We must determine whether knowledge of possession of a pistol is an element of Minnesota Statutes § 624.714 (2010), a gross misdemeanor offense prohibiting possession of a pistol in public without a permit. The statute provides:

A person, other than a peace officer, as defined in section 626.84, subdivision 1, who carries, holds, or possesses a pistol in a motor vehicle, snowmobile, or boat, or on or about the person’s clothes or the person, or otherwise in possession or control in a public place, as defined in section 624.7181, subdivision 1, paragraph (c), without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor. A person who is convicted a second or subsequent time is guilty of a felony.

Minn.Stat. § 624.714, subd. la. As written, the statute contains no express mens rea or knowledge requirement.

We review a district court’s refusal to give a requested jury instruction for an abuse of discretion. State v. Anderson, 789 N.W.2d 227, 239 (Minn.2010). The interpretation of a statute is a legal question we review de novo. See State v. Leathers, 799 N.W.2d 606, 608 (Minn.2011).

Mens rea is the element of a crime that requires “the defendant know the facts that make his conduct illegal.” Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). The mens rea requirement is “firmly embedded” in the common law. Id. “[T]he existence of a mens rea requirement is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” United States v. United States Gypsum Co., 438 U.S. 422, 436, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). Statutes that dispense with mens rea and “do not require the defendant to know the facts that make his conduct illegal” impose strict criminal liability. Staples, 511 U.S. at 606, 114 S.Ct. 1793. The Supreme Court of the United States has stated that “offenses that require no mens rea generally are disfavored.” Id. (citing Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985)).

Based on the strength of the common law rule requiring a mens rea element in every crime, the Supreme Court has determined that statutory silence is typically insufficient to dispense with mens rea. When a criminal statute is silent as to a mens rea requirement, this silence “does not necessarily suggest that Congress intended to dispense with a conventional mens rea element.” Staples, 511 U.S. at 605, 114 S.Ct. 1793. Instead, some positive indication of legislative intent is *819required to dispense with mens rea. See id. at 620, 114 S.Ct. 1793 (stating that if Congress had intended to impose strict liability, “it would have spoken more clearly to that effect”); Gypsum, 438 U.S. at 438, 98 S.Ct. 2864 (“Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.”).

We incorporated the Supreme Court’s reasoning in the case of In re C.R.M., 611 N.W.2d 802, 805 (Minn.2000) (“[Legislative intent to impose strict criminal liability must be clear.”). We explained that “ ‘we are guided by the public policy that if criminal liability, particularly gross misdemeanor or felony liability, is to be imposed for conduct unaccompanied by fault, the legislative intent to do so should be clear.’ ” Id. at 809 (quoting State v. Neisen, 415 N.W.2d 326, 329 (Minn.1987)). This principle has led us to interpret statutes as containing a mens rea requirement even when they do not expressly contain one. See, e.g., State v. Al-Naseer, 734 N.W.2d 679, 688 (Minn.2007) (reading a mens rea requirement into statute that states “if the person causes the death of a human being ... as a result of operating a motor vehicle ... where the [person] who causes the accident leaves the scene of the accident,” that person is guilty of criminal vehicular homicide); State v. Arkell, 672 N.W.2d 564, 568-69 (Minn.2003) (holding that misdemeanor offense of violating the Uniform Building Code was not a strict liability offense); State v. Strong, 294 N.W.2d 319, 320 (Minn.1980) (holding that a statute banning a person from bringing a firearm, weapon, or explosives into a correctional facility required the state to show that the defendant knew he possessed the item: ‘We see no reason why the element of scienter should be dispensed with in this situation and we are not convinced that the legislature intended to do so.”); State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975) (reading a knowledge requirement into possession of a controlled substance statute); State v. Siirila, 292 Minn. 1, 10, 193 N.W.2d 467, 473 (1971) (reading a knowledge requirement into the offense of possession of a small amount of marijuana, a gross misdemeanor).

For example, in C.R.M. we determined that the felony offense of possession of a weapon on school property contained a mens rea element requiring the State to prove the defendant knew he possessed the weapon. 611 N.W.2d at 810. C.R.M. was convicted under Minn.Stat. § 609.66, subd. Id (1998), for “possessing], storing], or keeping]” a dangerous weapon on school property. Id. at 804-05. We determined that section 609.66, subdivision Id, did not contain clear legislative intent to dispense with mens rea because “the legislature never explicitly indicated that it intended to create a strict liability offense.” Id. at 808. We concluded that “[i]f it is the legislature’s purpose to convict a student for a felony for the unknowing possession of a knife on school property, it should say so directly and unequivocally.” Id. at 809.

The Supreme Court has recognized that in limited circumstances a legislature may dispense with mens rea through silence— in statutes creating “public welfare” offenses. See Staples, 511 U.S. at 606-07, 114 S.Ct. 1793. For such offenses, a legislature may “impose a form of strict criminal liability through statutes that do not require the defendant to know the facts that make his conduct illegal.” Id. at 606, 114 S.Ct. 1793. When interpreting public welfare statutes, the Court “infer[s] from silence that Congress did not intend to require proof of mens rea to establish an offense.” Id. This departure from the traditional requirement of mens rea as an element is justified because public welfare statutes regulate “potentially harmful or *820injurious items,” including “dangerous or deleterious devices or products or obnoxious waste materials.” Id. at 607, 114 S.Ct. 1793 (citing United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 564-65, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971)). The items regulated by public welfare statutes are so dangerous that a defendant “should be alerted to the probability of strict regulation” and thus must “ascertain at his peril whether [his conduct] comes within the inhibition of the statute.” Id. at 607, 114 S.Ct. 1793 (citing United States v. Balint, 258 U.S. 250, 254, 42 S.Ct. 301, 66 L.Ed. 604 (1922)). For example, the Court has recognized that statutes regulating dangerous drugs and hand grenades can properly be considered public welfare statutes. See United States v. Freed, 401 U.S. 601, 609, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) (holding that the absence of a mens rea requirement under the National Firearms Act was valid because “one would hardly be surprised to learn that the possession of hand grenades is not an innocent act”); United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 134, 88 L.Ed. 48 (1943) (holding that the Food and Drugs Act of 1906, which regulated “impure and adulterated” foods and drugs, could properly dispense with mens rea and “throw this risk on shippers with regard to the identity of their wares”); Balint, 258 U.S. at 254, 42 S.Ct. 301 (holding that the Narcotic Act, which regulated sales of “dangerous drugs,” did not contain a mens rea requirement). ■

In Staples, the Supreme Court considered the applicability of the public welfare doctrine in answering whether mens rea was an element of the National Firearms Act. The Act imposed criminal liability for failure to register certain types of firearms, and the Court concluded that the Act required that a defendant know the characteristics of his or her weapon that make it a “firearm” under the Act. 511 U.S. at 604,114 S.Ct. 1793. The Act regulated fully automatic weapons, but Staples asserted that his weapon only fired semi-automatically and he was ignorant of any automatic-firing capability. Id. at 602-03, 114 S.Ct. 1793. The Court concluded that guns are not the type of dangerous items that should put an owner on notice of potential regulation. Id. at 610-11, 114 S.Ct. 1793. The Court contrasted gun ownership with activities like possessing hand grenades or selling dangerous drugs and stated that “there is a long tradition of widespread lawful gun ownership by private individuals in this country.” Id. at 610, 114 S.Ct. 1793. Additionally, the Court stated that in the. United States there is a “common experience that owning a gun is usually licit and blameless conduct” — the Court noted that half of American homes contain at least one firearm and the purchase of a firearm is a “simple transaction.” Id. at 613-14, 114 S.Ct. 1793. Neither the dangerousness of guns nor the panoply of gun regulations persuaded the Court that the National Firearms Act is a public welfare statute. See id. at 610-11, 613, 114 S.Ct. 1793 (citing Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985)). Construing the Act to impose strict liability would have potentially punished innocent actors who were ignorant of their weapon’s characteristics, and the Court was hesitant to “criminalize a broad range of apparently innocent conduct.” Id. at 610,114 S.Ct. 1793.

To determine whether Minn.Stat. § 624.714, subd. la, is a public welfare statute, we must ask whether a gun possessor should have been on notice that possession of a gun was subject to strict regulation. We undertake a “careful and close examination of the statutory language” to determine whether the Legislature intended to create a strict liability *821crime. C.R.M., 611 N.W.2d at 805 (citing State v. Orsello, 554 N.W.2d 70, 74 (Minn.1996)).

When read as a whole, Minn.Stat. § 624.714 demonstrates a legislative intent to promote the ability of law-abiding citizens to carry guns in public, not to restrict gun ownership and possession. First, the Legislature set forth its declaration of policy related to firearms in Minnesota Statutes § 624.711 (2010), which states:

It is not the intent of the legislature to regulate shotguns, rifles and other long-guns of the type commonly used for hunting and not defined as pistols or semiautomatic military-style assault weapons, or to place costs of administration upon those citizens who wish to possess or carry pistols or semiautomatic military-style assault weapons lawfully, or to confiscate or otherwise restrict the use of pistols or semiautomatic military-style assault weapons by law-abiding citizens.

Nothing in this policy statement indicates that the firearms laws have the purpose of strictly regulating gun possession in public. Indeed, the Legislature has “reeog-nize[d] and declare[d] that the second amendment of the United States Constitution guarantees the fundamental, individual right to keep and bear arms.” Minn. Stat. § 624.714, subd. 22. Far from emphasizing the dangerousness of firearms, the Legislature explicitly emphasized the freedom of law-abiding citizens to carry guns.

Second, section 624.714 allows gun owners to possess guns in public without a permit under certain conditions. No permit is required to possess a gun in one’s home, place of business, or on land that a person possesses. Minn.Stat. § 624.714, subd. 9(1). No permit is required to carry a pistol in public for the purpose of repair. MinmStat. § 624.714, subd. 9(2). A person may carry a pistol between his home and place of business without a permit. Minn. Stat. § 624.714, subd. 9(3). No permit is required to carry a pistol “in the woods or fields or upon the waters of this state” for hunting or target shooting. MinmStat. § 624.714, subd. 9(4). Finally, an unloaded pistol secured in a case may be transported in a vehicle without a permit. Minn.Stat. § 624.714, subd. 9(5). These exceptions to the permit requirement for public gun possession acknowledge that possessing guns in public is not strictly regulated.

A lack of strict regulatory intent is also evident in the limited enforcement mechanism available for private establishments wishing to ban guns on their premises under section 624.714. Private establishments may ban persons in possession of a pistol, with a permit, from their premises. MinmStat. § 624.714, subd. 17. Further, a person in possession of a pistol, with a permit, who remains at a private establishment knowing that the operator has banned guns on the premises may be ordered to leave the premises. MinmStat. § 624.714, subd. 17(a). But failing to leave the premises after being so ordered is treated only as a petty misdemeanor. Id. And the first such offense is punishable by a fine not to exceed $25. Id. Therefore, any person with a permit to carry a gun may take that gun into a private establishment, may refuse to leave when asked, and suffer only a $25 fine.

Although section 624.714 prohibits persons without permits from carrying a pistol in public, the inverse is also true: a person granted a permit to carry a pistol may carry it in public freely. Furthermore, it is not difficult to obtain a permit to carry a pistol. There is a statutory presumption in favor of granting a permit as long as the applicant meets the minimal requirements for eligibility. Minn.Stat. *822§ 624.714, subd. 2. And even without a permit, gun owners may legally keep guns in their homes, transport guns to work, possess guns at work, hunt with guns, and keep guns in their vehicles. Our examination of section 624.714 leads us to conclude that the statute does not treat guns as highly dangerous devices and does not put gun owners on notice of stringent regulation. Section 624.714, subdivision la, is not a public welfare statute designed to strictly regulate a highly-dangerous device and, therefore, we conclude that mens rea was not dispensed with by the Legislature.

Our conclusion that section 624.714, subdivision la, does not dispense with the traditional mens rea requirement is supported by the penalty imposed for a violation of subdivision la. “Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea.” Staples, 511 U.S. at 616, 114 S.Ct. 1793. While “small penalties” like fínes and short jail sentences “logically complement[ ] the absence of a mens rea requirement,” “imposing severe punishments for offenses that require no mens rea would seem incongruous.” Staples, 511 U.S. at 616-17, 114 S.Ct. 1793. Historical treatment of public welfare offenses “suggest[s] that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense.” Id. at 618, 114 S.Ct. 1793. We have also considered the severity of the penalty for a crime to be an important factor in determining whether the Legislature intended to dispense with mens rea as an element of that crime. See C.R.M., 611 N.W.2d at 806-07.

Because a felony-level punishment is incompatible with the theory of a public welfare offense, it is significant that a violation of section 624.714, subdivision la, is a felony offense in some circumstances. The first violation for carrying a pistol in public without a permit is a gross misdemeanor. Minn.Stat. § 624.714, subd. la. Every subsequent violation is a felony. Id. The enhancement of subsequent offenses to felony punishment is evidence that section 624.714, subdivision la, is not a public welfare regulation. Furthermore, the penalties associated with a gross misdemeanor offense suggest that section 624.714, subdivision la, is not a public welfare offense. Public welfare statutes have historically been punished by “fines or short jail sentences, not imprisonment in the state penitentiary.” Staples, 511 U.S. at 616, 114 S.Ct. 1793. Gross misdemean- or offenses are punishable by fines of up to $3,000 and incarceration of 90 days to 1 year. Minn.Stat. § 609.02, subds. 3-4 (2010). The difference between the maximum potential gross misdemeanor sentence and the minimum potential felony sentence is only 1 day. We consider sentences of 1 year in prison and fines of $3,000 to be severe punishments incompatible with a public welfare offense.

In sum, we conclude that silence does not suggest that the Legislature intended to dispense with mens rea as an element of possession of a pistol in public, Minn.Stat. § 624.714, subd. la. Thus, to obtain a conviction, the State was required to prove that Ndikum knew he possessed the pistol. The district court abused its discretion by failing to so instruct the jury.

Affirmed.

SATZ, Judge.

Defendant, Sandra Nations, owns and operates the Main Street Disco, in which police officers found a scantily clad sixteen year old girl “dancing” for “tips”. Consequently, defendant was charged with endangering the welfare of a child “less than seventeen years old,” § 568.050 RSMo 1978.1 Defendant was convicted and fined $1,000.00. Defendant appeals. We reverse.

Defendant contends the state failed to make a submissible case. Defendant failed to preserve this issue for review on appeal.2 We must, however, consider the issue of submissibility under the doctrine of plain error. It is manifest injustice for a trial court to submit a case to the fact finder on evidence insufficient to make a submissible case. E.g., State v. Russell, 581 S.W.2d 61, 63 (Mo.App.1979).

Specifically, defendant argues the state failed to show she knew the child was under seventeen and, therefore, failed to show she had the requisite intent to endanger the welfare of a child “less than seventeen years old.” We agree.

The pertinent part of § 568.050 provides:

“1. A person commits the crime of endangering the welfare of a child if:

(2) He knowingly encourages, aids or causes a child less than seventeen years old to engage in any conduct which causes or tends to cause the child to come within the provisions of subdivision (l)(c) .. of section 211.031, RSMo ....”

The reference to “subdivision (l)(c)” is to § 211.031.l(l)(c) RSMo (Supp. 1976), which was in effect when § 568.050 was enacted. This “subdivision” vested in the juvenile court exclusive original jurisdiction of any proceeding in which a child is alleged to be in need of care and treatment because “[t]he behavior, environment or associations of the child are injurious to his welfare or to the welfare of others”.3 *284Thus, § 568.050 requires the state to prove the defendant “knowingly” encouraged a child “less than seventeen years old” to engage in conduct tending to injure the child’s welfare, and “knowing” the child to be less than seventeen is a material element of the crime. See § 562.021.

“Knowingly” is a term of art, whose meaning is limited to the definition given to it by our present Criminal Code. Literally read, the Code defines “knowingly” as actual knowledge — “A person ‘acts knowingly’, or with knowledge, (1) with respect ... to attendant circumstances when he is aware ... that those circumstances exist _” (Emphasis original). § 562.016.3.4 So read, this definition of “knowingly” or “knowledge” excludes those cases in which “the fact [in issue] would have been known had not the person wilfully ‘shut his eyes’ in order to avoid knowing.” Perkins, Criminal Law 942 (2d ed. 1969). The Model Penal Code, the source of our Criminal Code, does not ex-elude these cases from its definition of “knowingly”. Instead, the Model Penal Code proposes that “[w]hen knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence_” (Emphasis added). Model Penal Code § 2.02(7) (Proposed Official Draft 1962). This definition sounds more like a restatement of the definition of “recklessly” than “knowingly”.5 The similarity is intentional. The Model Penal Code simply proposes that wilful blindness to a fact “be viewed as one of acting knowingly when what is involved is a matter of existing fact, but not when what is involved is the result of the defendant’s conduct, necessarily a matter of the future at the time of acting.” 6 Thus, as noted, the Model Penal Code proposes that “[w]hen knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence *285Model Penal Code § 2.02(7) (Proposed Official Draft 1962).

Our legislature, however, did not enact this proposed definition of “knowingly”. Although the definitions of “knowingly” and “recklessly” in our Criminal Code are almost identical to the primary definitions of these terms as proposed in the Model Penal Code, see Model Penal Code § 2.02(2)(b)-(c) (Proposed Official Draft 1962), the Model Penal Code’s proposed expanded definition of “knowingly”, encompassing wilful blindness of a fact, is absent from our Criminal Code. The sensible, if not compelling, inference is that our legislature rejected the expansion of the definition of “knowingly” to include wilful blindness of a fact and chose to limit the definition of “knowingly” to actual knowledge of the fact.7 Thus, in the instant case, the state’s burden was to show defendant actually was aware the child was under seventeen, a heavier burden than showing there was a “high probability” that defendant was aware the child was under seventeen. In short, the state’s burden was to prove defendant acted “knowingly”, not just “recklessly”. The state proved, however, that defendant acted “recklessly”, not “knowingly”. This we conclude from our review of the record.

In our review of the record, we do not weigh the evidence; rather, we simply determine whether there was sufficient proof for the fact finder to find the defendant guilty beyond a reasonable doubt. E.g., State v. Turner, 623 S.W.2d 4, 6 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982). In so doing, we consider only those facts and reasonable inferences favorable to the state. E.g., State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).

The record shows that, at the time of the incident, the child was sixteen years old. When the police arrived, the child was “dancing” on stage for “tips” with another female. The police watched her dance for some five to seven minutes before approaching defendant in the service area of the bar. Believing that one of the girls appeared to be “young,” the police questioned defendant about the child’s age. Defendant told them that both girls were of legal age and that she had checked the girls’ identification when she hired them. When the police questioned the child, she initially stated that she was eighteen but later admitted that she was only sixteen. She had no identification.

Aside from the child’s age, these facts were established by the testimony of a police officer. The state also called the child as a witness. Her testimony was no help to the state. She testified the defendant asked her for identification just prior to the police arriving, and she was merely crossing the stage to get her identification when the police took her into custody.8 Nor can the state secure help from the defendant’s testimony. She simply corroborated the child’s testimony; i.e., she asked the child for her identification; the child replied she would “show it to [her] in a minute”; the police then took the child into custody.

These facts simply show defendant was untruthful. Defendant could not have checked the child’s identification, because the child had no identification with her that day, the first day defendant “hired” the child. This does not prove that defendant knew the child was less than seventeen years old. At best, it proves defendant did not know or refused to learn'the child’s age. The latter is the best case for the state. But defendant’s refusal to learn the age of this “young” child who was “dancing” “scantily clad” in her disco bar simply proves that defendant was “aware of a *286high probability” that the child was under seventeen, or, stated otherwise, in the definitional language of our Criminal Code, proves that defendant was conscious of “a substantial and unjustifiable risk” that the child was under seventeen and that defendant’s disregard of the risk was a “gross deviation” from the norm. See § 562.016.-4. This, however, is not “knowledge” under our Criminal Code. It is “recklessness”, nothing more. Having failed to prove defendant knew the child’s age was less than seventeen, the state failed to make a submissible case.9

Judgment reversed.

SIMON, P.J., and KAROHL, J., concur.

OPINION

ANDERSON, RUSSELL A., Chief Justice.

We granted review in this case to determine whether a conviction under Minn. *593Stat. § 609.66, subd. la(a)(3) (2006), which proscribes recklessly discharging a firearm in a municipality, requires proof that the firearm was intentionally discharged. We hold that a conviction under Minn.Stat. § 609.66, subd. la(a)(3), does not require proof of an intentional discharge, but rather requires proof of a conscious or intentional act, in connection with the discharge of a firearm, that creates a substantial and unjustifiable risk that the actor is aware of and disregards. We remand to the district court for reconsideration consistent with this opinion.

Appellant Timothy Kenbert Engle was convicted of recklessly discharging a firearm in a municipality in violation of Minn. Stat. § 609.66, subd. la(a)(3). The court of appeals- affirmed. State v. Engle, 731 N.W.2d 852 (Minn.App.2007).

On November 2, 2003, Engle, a private security guard, arrived at a St. Paul housing complex to assist a fellow security guard in apprehending a suspected thief. The suspect attempted to flee, but eventually the guards held him at gunpoint, sitting in the driver’s seat of a stolen car. Somehow, in the course of removing the suspect from the car, Engle discharged his gun, shooting and paralyzing the suspect. Both parties concede that the discharge was unintentional.

After a bench trial, the district court found Engle guilty of recklessly discharging a firearm within a municipality. The court defined “recklessly” as “a conscious and intentional act that the defendant knew or should have known created an unreasonable risk of harm to others.” The court noted that “[b]oth parties agree that the discharge of the firearm was unintentional” but concluded that “[t]he law is clear to me that no intent to discharge * * * needs to be established.” The court found that the reckless act satisfying the statutory requirement “was having the weapon positioned so that it could be discharged and cause harm while [Engle extracted the suspect] from the car.” The court stayed imposition of Engle’s sentence and placed him on probation for 2 years.

Engle appealed, arguing to the court of appeals, among other things that the district court erred in not requiring proof that he intentionally discharged his weapon. Engle, 731 N.W.2d at 854. The court of appeals affirmed, holding that discharge need not be intentional. Id. at 862. Engle petitioned this court for review, which we granted only as to the issue of whether subdivision la(a)(3) requires an intentional discharge of a firearm.

I.

We review questions of statutory interpretation de novo. State v. Wiltgen, 737 N.W.2d 561, 570 (Minn.2007). “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.” Minn.Stat. § 645.16 (2006). If a statute is unambiguous, it is to be given its plain meaning. Id.; State v. Al-Naseer, 734 N.W.2d 679, 684 (Minn.2007). If a statute is ambiguous or unclear, we consider “(1) the occasion and necessity for the law; (2) the circumstances under which it was enacted; (3) the mischief to be remedied; (4) the object to be attained;” (5) any former law; “(6) the consequences of a particular interpretation;” (7) legislative history; and “(8) legislative and administrative interpretations of the statute.” Minn.Stat. § 645.16.

Minnesota Statutes § 609.66, subd. la(a), provides that a person who “(2) intentionally discharges a firearm under circumstances that endanger the safety of another; or (3) recklessly discharges a firearm within a municipality” is guilty of a *594felony. In subdivision la(a)(3), the adverb “recklessly” modifies the verb “to discharge.” On its face, then, the statute prohibits discharging a firearm in a reckless manner. Whether there is ambiguity depends on the definition of “reckless,” to which we now turn.

“Reckless” is an ambiguous term. It is not defined in the Minnesota criminal code. See MinmStat. § 609.02 (2006). The term has not always been used consistently, although it is generally used to define a level of culpability more serious than ordinary negligence and less serious than specific intent to harm. 1 Wayne F. LaFave, Substantive Criminal Law § 5.4, at 365-66 (2d ed.2003). Recklessness often describes conduct that exceeds ordinary negligence in two respects: a higher degree of risk, and a higher degree of fault — the actor must be subjectively aware that his conduct creates the risk. Id. at 366; see also 1 Charles E. Torcía, Whartons Criminal Law § 27, at 167-68 (15th ed. 1993) (A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.).

Two distinct lines of our cases offer two different definitions of recklessness. We were called upon in State v. Cole to define recklessness for purposes of, among other provisions, MinmStat. § 609.66, subd. 1(1) (2006), which proscribes recklessly handling a gun so as to endanger the safety of another. 542 N.W.2d 43, 51 (Minn.1996). Relying on State v. Zupetz, in which we defined “recklessly” in the context of reckless homicide, 322 N.W.2d 730, 733-34 (Minn.1982), we said, “A person acts ‘recklessly’ when he consciously disregards a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct * * *. [Both the reckless actor and the intentional] actor [create] a risk of harm. The reckless actor is aware of the risk and disregards it.” Cole, 542 N.W.2d at 51-52 (alterations in original); see also State v. Mauer, 741 N.W.2d 107, 115 (Minn.2007); State v. Frost, 342 N.W.2d 317, 319-20 (Minn.1983).

The definition of “recklessness” in the second line of cases is embodied in the model jury instruction for MinmStat. § 609.66, subd. la(a)(3), upon which the district court relied in this case. The instruction states that “ ‘[r]ecklessly’ means á conscious and intentional act that the defendant knew, or should have known, created an unreasonable risk of harm to others.” 10A Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 32.10 (5th ed.2006). This definition originated in our reckless driving jurisprudence. See State v. Bolsinger, 221 Minn. 154, 157, 21 N.W.2d 480, 484 (1946).

We conclude that the Cole definition applies to MinmStat. § 609.66, subd. la(a)(3). The Cole definition comports with the most common usage of the term. See Torcía, supra, § 27; 22 C.J.S. Criminal Law § 51 (2006) (“A person is said to act recklessly when he or she consciously disregards a substantial and unjustifiable risk that an injury will occur, or when his or her action is grossly heedless of consequences.”); 21 Am.Jur.2d Criminal Law § 138 (2d ed. 1998) (“Recklessness requires that an actor consciously disregard a substantial and unjustifiable risk”). We see no reason why this general definition of “recklessness” should not apply to felony weapons offenses.

By contrast, the Bolsinger line of eases expressly limits its definition of “recklessness” to the unique context of reckless driving, which involves criminal negligence concepts. See MinmStat. §§ 169.11,169.13 *595(2006) (current statutes dealing with criminal negligence and reckless driving); State v. Meany, 262 Minn. 491, 495-96, 115 N.W.2d 247, 251 (1962) (“The crime of criminal negligence is defined in Minn. St. 169.11 * * *. The meanings of the terms ‘reckless’ and ‘grossly negligent,’ as used in this statute, are exhaustively reviewed in State v. Bolsinger * * *.” (emphasis added)); Bolsinger, 221 Minn. at 157, 21 N.W.2d at 484 (“In order to apply § 169.11 * * *, we must first determine what it means. * * * The meaning of the word ‘reckless,’ so far as it relates to driving, is found in § 169.13.” (emphasis added)). We find no indication that the legislature intended to apply a reckless driving standard to a wholly separate regulatory scheme. Accordingly, we adopt the Cole definition and hold that for purposes of Minn.Stat. § 609.66, subd. la(a)(3), one acts recklessly by creating a substantial and unjustifiable risk that one is aware of and disregards.

II.

Having clarified that “recklessly” as used in Minn.Stat. § 609.66, subd. la(a)(3), requires the creation of a substantial and unjustifiable risk that the actor is aware of and disregards, it remains for us to determine whether the act creating that risk must be the intentional act of discharge or whether other acts can also constitute reckless discharge. Any crime, including reckless crimes, requires some voluntary act. See 1 Torcía, supra, § 25. It is not clear from Minn.Stat. § 609.66, subd. la(a)(3), whether that act must be the act of discharge or whether any act in connection with the discharge of a firearm evincing a conscious disregard of a substantial and unjustifiable risk can suffice. In arguing that an intent requirement should be read into the statute, Engle cites dicta in State v. Richardson, 670 N.W.2d 267, 283 (Minn.2003).1

The court of appeals relied upon the provision in Minn.Stat. § 645.16 that statutes should be construed to give effect to every provision. Engle, 731 N.W.2d at 862. The court reasoned that reading an intent component into subdivision la(a)(3) would render subdivision la(a)(2) superfluous, because intentional discharge in a reckless manner within a municipality necessarily falls within the ambit of intentional discharge in a manner that endangers another’s safety. Id. Although much conduct would fall under both statutes, one could arguably be reckless in violation of subdivision la(a)(3) without endangering another in violation of subdivision la(a)(2).

It is significant, however, that subdivision la(a)(2), which existed in its current form when la(a)(3) was added in 1993, explicitly includes an intent requirement. See Act of May 20, 1993, ch. 326, art. 1, § 15, 1993 Minn. Laws 1974, 1986. This fact strongly suggests that the legislature deliberately decided against using the same “intentionally discharges” language in the new section. Had the legislature wanted subdivision la(a)(3) to mean “intentionally discharges a firearm in a reckless manner within a municipality,” it could have mirrored the existing language in subdivision la(a)(2).2

*596Engle argues that not reading an intent component into subdivision la(a)(3) leads to an absurd result, namely that it “would render any licensed, trained individual (including law enforcement officers), acting entirely in accordance with accepted procedures, subject to criminal prosecution and conviction for any unintentional firearm discharge caused by a reflexive response.” This argument misleadingly suggests that rejecting Engle’s proposed intent requirement would negate any mental state requirement. On the contrary, the statute requires on its face that the discharge be reckless. A reckless crime requires both intentional conduct and the creation of a risk. Mere reflex, where an actor had not taken voluntary actions creating a risk, could not in any event subject a person to penalty under the statute.

Moreover, the policy of the statute— protecting the community from death or injury by firearms — is best served by holding actors responsible for consciously disregarding risks of harm, whether they do so by intentionally pulling the trigger or by another act that increases the likelihood that the gun will discharge accidentally, involuntarily, or reflexively. In light of the absence of any language of intent in subdivision la(a)(3), the corresponding presence of the word “intentionally” in an adjacent and preexisting section, and the legislative policy of protecting the public from the irresponsible use of firearms, we conclude that a person need not intend the discharge. We disavow any dicta in Richardson that says otherwise. We hold that a person has the requisite mental state for Minn.Stat. § 609.66, subd. la(a)(3), if he commits a conscious or intentional act in connection with the discharge of a firearm that creates a substantial and unjustifiable risk that he is aware of and disregards.

Although the district court correctly concluded that the State need not prove that Engle intentionally discharged his firearm, the court applied the model jury instruction definition of recklessness, requiring only that Engle knew or should have known of the unreasonable risk he created. Because we hold here that a higher standard is proper for purposes of Minn.Stat. § 609.66, subd. la(a)(3), we must remand for reconsideration based on the existing record in light of this opinion. On remand, the district court must determine whether Engle committed a conscious or intentional act, in connection with the discharge of a firearm, that created a substantial and unjustifiable risk that he was aware of and disregarded.

Remanded.

OPINION

MCKEIG, Justice.

Appellant Alie Dorn pushed D.E. twice in the chest, causing D.E. to stumble into a nearby bonfire and sustain burn injuries. After a bench trial, the district court convicted Dorn of first-degree assault under Minn. Stat. § 609.221, subd. 1 (2014) (great bodily harm). Dorn appealed, arguing that her intent and conduct did not meet the definition of assault under Minn. Stat. § 609.02, subd. 10(2) (2014) (assault-harm). The court of appeals affirmed, and we granted review. On appeal to this court, Dorn maintains that the evidence was insufficient to convict her of first-degree assault because (1) she did not intentionally harm D.E., and (2) her actions did not “inflict” bodily injury, which Dorn contends requires direct causation. We affirm.

I.

On July 20, 2013, appellant Alie Dorn, then 22 years old, attended a large outdoor party near Thief River Falls in Marshall County. D.E., then 19 years old, also attended. Most people at the party, including Dorn and D.E., were drinking alcohol. Dorn and D.E. did not know each other, *829but at approximately 1:00 a.m., they were standing about 5 feet away from each other next to a large bonfire.1 The bonfire was made of wooden pallets surrounded by rocks and bricks of varying sizes, and by 1:00 a.m. it had burned down to embers.

Within earshot of Dorn, D.E. told his friend that Dorn looked like a drug dealer. Dorn overheard and replied, “What?” D.E. repeated that Dorn looked like a drug dealer. Dorn reacted by pushing D.E. in the chest using two hands. D.E. lost his balance and took a step or two backwards toward the fire. Dorn asserts that D.E. then “came at” her, failing to heed the “fair warning” of her first push, at which point she “shoved” D.E. in the chest a second time, again using two hands.2 D.E. contests Dorn’s allegation that he came at her, asserting that he never regained his balance before Dorn shoved him a second time. Both agree that D.E. then fell and landed on his right side in the burning embers, sustaining significant ■ burn injuries.

It is disputed whether D.E. tripped on debris around the fire before falling, or fell directly into the fire. But most witnesses agreed that D.E. stumbled into the fire within seconds of, and as a result of, Dorn’s push. Dorn told police that she “shoved” D.E. to get him out of her personal space because he was “in [her] face,” “saying a bunch of stuff,” “calling [her] a drug dealer,” and “standing close” to her. She said she did not intend to push D.E. into the fire.

Following a bench trial, the district court convicted Dorn of first-degree' assault, Minn. Stat. § 609.221, subd. 1. The district court found that, although Dorn did not intend to push D.E. into the fire, she intentionally pushed D.E.. twice in the chest. The district court concluded that this satisfied the intent requirement for assault-harm under State v. Fleck, 810 N.W.2d 303 (Minn. 2012). The court of appeals affirmed, holding that Dorn possessed the requisite intent and that her actions “inflict[ed]” D.E.’s injury. State v. Dorn, 875 N.W.2d 357, 361-62 (Minn. App. 2016). We granted Dorn’s petition for review.

II.

Dorn challenges her conviction for first-degree assault. Minnesota’s first-degree assault statute punishes an individual who “assaults another and inflicts great bodily harm.” Minn. Stat. § 609.221, subd. 1.3 “Assault” is defined as “(1) an act done with intent to cause fear in another of immediate bodily harm or death” (assault-fear), or “(2) the intentional infliction of or attempt to inflict bodily harm upon another” (assault-harm). Miñn. Stat. § 609.02, subd. 10 (2014). Dorn argues that the evidence was insufficient to satisfy the definition of assault-harm under section 609.02, subdivision 10(2), because she did not intentionally harm D.E., ‘and her actions did not directly cause D.E.’s injuries. Dorn’s sufficiency ’ challenge requires us to ad*830dress the mens rea, actus reus, and causation required for assault-harm. .

We review questions of law de hovo. State v. Leathers, 799 N.W.2d 606, 608 (Minn. 2011). When interpreting statutes,-we seek to “effectuate the intention of the legislature.” Minn. Stat. § 645.16 (2014). “If the Legislature’s intent is discernible from the statute’s plain and unambiguous language, the letter of the law shall not be disregarded under the pretext of pursuing its spirit.” State v. Riggs, 865 N.W.2d 679, 682 (Minn. 2015).

The application of the law to Dorn’s conduct requires an evaluation of the sufficiency of the evidence. We will not disturb the verdict if the factfinder, acting with due regard for the presumption of .innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that, the defendant was guilty of the charged offense. See State v. Chavarria-Cruz, 839 N.W.2d 515, 519 (Minn. 2013). We “view the evidence in the light most favorable to the verdict and assume that the factfinder disbelieved any testimony conflicting with that verdict.” State v. Leake, 699 N.W.2d 312, 319 (Minn. 2005). This standard applies to both bench trials and jury trials. State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011).

A.

We first consider whether Dorn possessed the mens rea required for assault-harm. “Mens rea is the element of a crime that requires ‘the defendant know the facts that make [her] conduct illegal.’ ” State v. Ndikum, 815 N.W.2d 816, 818 (Minn. 2012) (quoting Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)). Without this mens rea element, a statute imposes strict criminal liability. Id. Strict-liability statutes are “generally disfavored,” and therefore, “legislative intent to impose strict criminal liability must be clear.” In re C.R.M., 611 N.W.2d 802, 805 (Minn. 2000).

In Fleck, we concluded that assault-harm requires only genferal intent. 810 N.W.2d at 309, 312. General intent is satisfied when, a defendant “intentionally engag[ed] in the prohibited conduct.” Id. at 308. In other words, “a general-intent crime only requires proof that ‘the defendant intended to do the physical act forbidden, without proof that [she] meant to or knew that [she] would violate the law or cause a particular result.’ ” Id. (quoting 9 Henry W. McCarr & Jack S. Nordby, Minnesota Practice—Criminal Law and Procedure § 44.3 (3d ed. 2001)), Further, the defendant must do the act of her own volition or free will. Id. at 309.

For assault-harm, “[t]he forbidden conduct is a physical act, which results in bodily harm upon another.” Id. Specifically, assault-harm requires “only an intent to do the prohibited physical act of committing a battery.” Id. at 310 (quoting State v. Lindahl, 309 N.W.2d 763, 767 (Minn. 1981)). The State must therefore prove that “the blows to complainant were not accidental but were intentionally inflicted.” Id. (quoting Lindahl, 309 N.W.2d at 767).

Dorn argues that Fleck erroneously established a strict-liability standard for even friendly consensual touching. To support her argument, she cites our statement that “[t]he forbidden conduct is a physical act, which results in bodily harm,” id. at 309 (emphasis added). According to Dorn, the assault-harm definition must require the intent to do some amount of harm in order to avoid creating a strict-liability crime. The court of appeals disagreed, stating that assault-harm requires the “intent to commit a battery,” which supplies the allegedly missing mens rea requirement. Dorn, 875 N.W.2d at 361-62.

*831The court of appeals correctly held that the definition of assault-harm does not impose strict liability for even consensual, friendly conduct, because it requires a battery. In characterizing the mens rea requirement as the “intent to commit a battery,” however, the court of appeals conflated the mens, rea and actus reus elements of assault-harm. We affirm our statement in Fleck that the mens rea element of assault-harm, “intentional,” requires only the general intent to do the act that results in bodily harm. 810 N.W.2d at 309; see also Minn. Stat. § 609.02, subd. 10(2). As we explain further below, 'the actus reus element of assault-harm requires that this act constitute a battery. Fleck, 810 N.W.2d at 310 (quoting Lindahl, 309 N.W.2d at 767).

This distinction is important because in proving the mens rea element of general-intent crimes,, the State need not show that the defendant, “meant to or knew that [she] would violate, the law or cause a particular result.” Fleck, 810 N.W.2d at 308 (quoting McCarr & Nordby, supra, § 44.3). Indeed, Lindahl carefully phrases the assault-harm battery requirement, separating the mens rea and actus reus elements: a defendant need only intend “to. do the prohibited physical act of committing .a battery.” 309 N.W.2d at 767 (emphasis added). Nothing in Lindahl suggests that the defendant must intend to commit a battery; rather, the defendant need only intend to commit an act that constitutes a battery.

This standard does not impose strict liability because it requires the defendant to “know the facts that make [her] conduct illegal.” Ndikum, 815 N.W.2d at 818 (quoting Staples, 511 U.S. at 605, 114 S.Ct. 1793). Specifically, for assault-harm, a defendant must intend the act. that makes her conduct a battery;' in .other words, she must intentionally apply force to another person without his consent. See II.B., infra. If, instead, we required the intent to commit a battery, a defendant would not only need to know the facts that make her conduct illegal, but would also need to know that her conduct breaks the law. It is well settled, however, that' a mistake of law is generally -not a defense to a general-intent crime. State v. Jacobson, 697 N.W.2d 610, 615 (Minn. 2005); see also State v. Wenthe, 865 N.W.2d 293, 301 n.2, 303 (Minn. 2015) (holding that the clergy sexual conduct statute requires general intent and does not impose strict liability because the act of sexual penetration must be intentional).

The evidence is sufficient to establish that Dorn possessed the mens rea required for assault-harm. Indeed, Dorn admits that she “shoved” D.E. to get him out of her personal space. She does not contend that she pushed D.É. accidentally or involuntarily. Dorn may not have understood that her conduct constituted an unlawful battery, or that it would result in bodily harm. Dorn did, however, intentionally apply force to another person, which satisfied the mens rea element of assault-harm,

B.

Next, We consider whether Dorn’s conduct constituted a battery, and therefore satisfied the actus reus required for assault-harm. The court of appeals determined that Dorn’s conduct constituted a battery because she applied physical force to D.E. Dorn, 875 N.W.2d at 361-63. In Minnesota, the separate crime of battery has been incorporated into the definition of assault. Compare Gallagher v. State, 3 Minn. 270, 271-73, 3 Gil. 185, 187-88 (1859) (discussing the common-law crime of “assault and battery,” which included striking another person), with State v. Basting, 572 N.W.2d 281, 286 (Minn. 1997) (holding that *832punching another person is a statutory “assault”). At common law, criminal battery was “the intentional application of unlawful force against the person of another.” Johnson v. United States, 559 U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). “Force” was “satisfied by even the slightest offensive touching.” Id.; see also Battery, Black’s Law Dictionary (10th ed. 2014) (defining criminal battery as “[t]he nonconsensual touching of, or use of force against, the body of another with the intent to cause harmful or offensive contact”).

Our cases involving criminal battery pri- or to its assimilation into the criminal assault statutes are consistent with this definition. See, e.g., Gallagher, 3 Minn. at 272 (considering a strike to another person that caused him to lose his balance to be a battery). Further, since the enactment of the assault statutes, we have specifically stated that “[dragging or pushing a person could meet the statutory definition of assault ... if the act did cause or attempted to cause bodily harm.” State v. Anderson, 763 N.W.2d 9, 13 (Minn. 2009).

Dorn correctly points out that the language of the assault-harm definition does not include the word “battery.” Rather, the language requires the “infliction” of bodily harm. Minn. Stat. § 609.02, subd. 10(2). “Inflict” means “to lay (a blow) on” or “cause (something damaging or painful) to be endured.” Webster’s Third New International Dictionary 1160 (2002); see also The American Heritage Dictionary 900-01 (5th ed. 2011) (“The act or process of imposing or meting out something unpleasant.”). The definitions of “battery” and “inflict” are therefore similar, requiring the State to show that, the defendant engaged in nonconsensual physical contact.

The evidence is sufficient to show that Dorn’s conduct constituted a battery or “infliction” of harm. Dorn pushed D.E. twice in the chest with two hands, hard enough to cause him to lose his balance. Dorn admitted that her actions were not consensual or friendly. Rather, Dorn “shoved” D.E. to get him out of her personal space because he was “in [her] face,” “saying a bunch of stuff,” “calling [her] a drug dealer,” and “standing close” to her. She characterized her first push as “fair warning.” At that point, Dorn had committed a battery because she intentionally applied nonconsensual force against D.E. She committed a second battery when she shoved D.E. again. Both of these actions also “inflicted” harm because she imposed something unpleasant, “a blow.” As such, Dorn’s conduct satisfied the actus reus element of assault-harm.

C.

Finally, we consider whether Dorn’s conduct was the legal cause of D.E.’s injuries. The Legislature used the word “cause” in the assault-fear provision, but chose the word “infliction” for the assault-harm provision. Minn. Stat. § 609.02, subd. 10 (defining assault-fear as “an act done with intent to cause fear,” and assault-harm as “the intentional infliction of’ bodily harm (emphasis added)). Dorn argues that “inflict” is a stricter standard than “cause” and requires direct, not just proximate or “substantial factor,” causation. See State v. Gatson, 801 N.W.2d 134, 146 (Minn. 2011) (explaining that under a homicide statute in which the word “cause” is used, the State need only prove that the defendant’s acts were a “ ‘substantial causal factor’ leading to the death”) (quoting State v. Olson, 435 N.W.2d 530, 534 (Minn. 1989)); see also Olson, 435 N.W.2d at 534 (explaining that a defendant may rebut substantial causation by establishing that “intervening conduct [was] the sole cause of the end result”).

*833Dorn contends that she did not inflict bodily harm because her pushes did not harm D.E. directly; rather, D.E. was injured only because he tripped over debris and stumbled into the fire. The district court did not make a finding as to whether D.E. tripped over debris, concluding that this determination was not essential because “[D.E.j’s movements were initiated by [Dorn]’s actions.” The court of appeals held that the same “substantial causal factor” standard that applies to “cause” also applies to “infliction,” and that Dorn failed to identify a genuine superseding cause under this standard. Dorn, 875 N.W.2d at 362.

“When different words are used in the same context, we assume that the words have different meanings.” Dereje v. State, 837 N.W.2d 714, 720 (Minn. 2013). Again, “inflict” means “to lay (a blow) on” or “cause (something damaging or painful) to be endured.” Webster’s Third New International Dictionary, supra, at 1160. “[Cjause” means to “bring into existence” or “effect by command, authority, or force.” Id. at 356.

Dorn cites a Sixth Circuit case for the notion that the “best” interpretation of “inflict” is “something more precise—and thus something narrower”—than “cause.” United States v. Zabawa, 719 F.3d 555, 560 (6th Cir. 2013). Specifically, Zabawa concluded that “inflict” indicates “a sense of physical immediacy: to cause harm directly, by physical force.” Id. at 560; see, e.g., id. at 559-61 (holding that the injury was not inflicted by the defendant when it may have “resulted from the actions (i.e., the headbutt) of [the victim] himself’); United States v. Jackson, 310 F.3d 554, 557 (7th Cir. 2002) (holding that the injury was inflicted by the defendant when it occurred while the defendant “applied force directly to [the victim’s] person”); United States v. Garcia-Camacho, 122 F.3d 1265, 1269 (9th Cir. 1997) (holding that the injury was inflicted by the defendant when it occurred as a result of the defendant’s combative conduct).

Assuming without deciding that an “infliction” requires direct causation as Dorn argues, the evidence is sufficient to show that Dorn directly caused D.E.’s bodily harm. Even if D.E. stumbled on debris as he fell, Dorn pushed D.E. hard enough to cause him to lose his balance within a few feet of hot embers, and D.E. fell into the fire within moments of Dorn’s push. The causation standard for assault-harm is therefore satisfied, even under Dorn’s narrower proposed interpretation.

Thus, the evidence is sufficient to sustain Dorn’s conviction for first-degree assault under Minn. Stat. § 609.221, subd. 1. Specifically, the definition of assault-harm under Minn. Stat. § 609.02, subd. 10(2) is satisfied because (1) Dorn’s application of force to D.E.' was “intentional,” (2) her conduct constituted a battery and was therefore an “infliction” of harm, and (3) her conduct was the direct cause of D.E.’s injuries.

Affirmed.

GILDEA, C.J., took no part in the consideration or decision of this case.

CHUTICH, J., took no part in the consideration or decision of this case.

*403Roberts, C. J.

These are two indictments, one (No. 70-573) charging the defendant, Henry Rose, with leaving the scene of an accident, death resulting, in violation of *404G. L. 1956 (1968 Reenactment) §31-26-l1 and the other (No. 70-572) charging the defendant with manslaughter. The defendant was tried on both indictments to a jury in the Superior Court, and a verdict of guilty was returned in each case. Thereafter the defendant’s motions for a new trial were denied, and he is now prosecuting a bill of exceptions in each case in this court.

These indictments followed the death of David J. Mc-Enery, who was struck by defendant’s motor vehicle at the intersection of Broad and Summer Streets in Providence at about 6:30 p.m. on April 1, 1970. According to the testimony of a bus driver, he had been operating his vehicle north on Broad Street and had stopped at a traffic light at the intersection of Summer Street. While the bus was standing there, he observed a pedestrian starting to cross Broad Street, and as the pedestrian reached the middle of the southbound lane he was struck by a “dirty, white station wagon” that was proceeding southerly on Broad Street. The pedestrian’s body was thrown up on the hood of the car. The bus driver further testified that the station wagon stopped momentarily, the body of the pedestrian rolled off the hood, and the car immediately drove off along Broad Street in a southerly direction. The bus operator testified that he had alighted from his bus, intending to attempt to assist the victim, but was unable to locate the body.

Subsequently, it appears from the testimony of a police *405■officer, about 6:40 p.m. the police located a white station wagon on Haskins Street, a distance of some 610 feet from the scene of the accident. The police further testified that a body later identified as that of David J. McEnery was wedged beneath the vehicle when it was found and that the vehicle had been registered to defendant.

Testifying on behalf of the state was a Robert Buckley, who stated that he had worked with defendant and that about 5 p.m. on the day of the accident he had gone to a place located in Central Falls that he identified as The Palms where he met defendant about 5:15 p.m. Buckley further testified that about 7 p.m. that evening defendant phoned him, told him that he had been involved in an accident, and asked Buckley to help him look for his car. According to Buckley, he picked up defendant’s girl friend, identified as Pat, and went to the vicinity of the accident and drove around for some time but was unable to locate the car.

Buckley testified that later he picked up defendant, who asked him to take him to a cafe in Central Falls known as The Well, where he would attempt to establish an alibi. After arriving at The Well, defendant asked Buckley to take him to the Central Falls police station, where defendant reported that his car had been stolen from in front of The Well sometime between 5:30 p.m. and 9 p.m. on that day. Buckley later drove defendant to Pat’s home, and while there defendant answered a telephone call. After the telephone call had been completed, defendant told Buckley that “a guy had been killed.” According to Buckley, defendant “was denying it on the ’phone” during the conversation.

We turn, first, to defendant’s contention that the trial court erred in denying his motion for a directed verdict of acquittal in each case. It is settled that such a motion challenges the sufficiency of the evidence adduced by the *406state to support a verdict of guilty beyond a reasonable doubt. Where the evidence so adduced is insufficient to meet such burden of proof, it is error to submit the case to a jury. State v. Lisi, 105 R.I. 516, 253 A.2d 239 (1969). In a criminal case the trial justice, in passing on such a motion, is required to give full credibility to the state’s evidence, view it in a light most favorable to the state, and draw therefrom every reasonable inference consistent with guilt. However, where the evidence adduced by the state and the reasonable inferences to be drawn therefrom, even when viewed in a light most favorable to the state, are insufficient to establish guilt beyond a reasonable doubt, the court must grant the defendant’s motion for a directed verdict. State v. Saulnier, 109 R.I. 11, 280 A.2d 85 (1971).

The defendant, contending that the evidence adduced in these cases is entirely circumstantial, urges that to warrant a jury in finding the accused guilty beyond a reasonable doubt, it is necessary not only that the evidence be consistent with a conclusion of guilt but must also at the same time be inconsistent with any reasonable hypothesis of innocence. This, the circumstantial evidence rule, so called, is followed in this state. State v. Franklin, 103 R.I. 715, 241 A.2d 219 (1968); State v. Montella, 88 R.I. 469, 149 A.2d 919 (1959).

While we do not agree as to the character of the evidence, we are unable to perceive that the test of the sufficiency of a combination of direct and circumstantial evidence to determine its adequacy to warrant a conclusion of guilt beyond a reasonable doubt would differ materially from that set out in the circumstantial evidence rule. That rule obviously derives from the fundamental rule applied in all criminal cases to test the sufficiency of evidence to support a finding of guilt beyond a reasonable doubt. It is resorted to, in our opinion, to overcome *407a misconception of the probative thrust of circumstantial evidence, particularly with reference to cases where the findings must rest either entirely or in major part on circumstantial evidence.

It is well settled that there is no valid distinction between the probative force of direct and of circumstantial evidence. Any fact may be established by circumstantial evidence as sufficiently and completely as by positive, direct evidence. State v. Davis, 108 N.H. 45, 226 A.2d 873 (1967); State v. Dancyger, 29 N.J. 76, 148 A.2d 155 (1959); State v. Goodhart, 112 Vt. 154, 22 A.2d 151 (1941); 3 Wharton, Criminal Evidence (12th ed. 1955) §980 at 472-73.

Testing the sufficiency of mixed evidence to support a finding of guilt beyond a reasonable doubt requires the making of no distinction between direct evidence of a fact and evidence of circumstances from which the exist-1 ence of a fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct. In either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused. Nichols v. State, 5 Md. App. 340, 247 A.2d 722 (1968). “ ‘A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.’ ” State v. Reid, 154 Conn. 37, 40, 221 A.2d 258, 259 (1966), quoting State v. Foord, 142 Conn. 285, 295, 113 A.2d 591, 596 (1955).

We are persuaded, then, that to test the sufficiency of evidence to support a finding of proof of guilt beyond a reasonable doubt requires that such evidence be consistent only with a reasonable theory of guilt. Where that evidence is consistent with any other reasonable conclusion, *408the guilt of the accused cannot be considered as having been established beyond a reasonable doubt.

The defendant here argues that in neither ease did the evidence exclude any reasonable hypothesis or theory of the innocence of defendant. In so arguing in case No. 70-572, charging defendant with manslaughter, defendant directs our attention to the fact that the court charged the jury that there was no evidence in the case of culpable negligence on the part of defendant up to and including the time at which Mr. McEnery was struck by the station wagon. He further charged the jury that, in order to find defendant guilty of manslaughter, it would be necessary to find that McEnery was alive immediately after the impact and that the conduct of defendant following the impact constituted culpable negligence.

The defendant is contending that if the evidence is susceptible of a finding that McEnery was killed upon impact, he was not alive at the time he was being dragged under defendant’s vehicle and defendant could not be found guilty of manslaughter. An examination of the testimony of the only medical witness makes it clear that, in his opinion, death could have resulted immediately upon impact by reason of a massive fracture of the skull. The medical witness also testified that death could have resulted a few minutes after the impact but conceded that he was not sure when it did occur.

We are inclined to agree with defendant’s contention in this respect. Obviously, the evidence is such that death could have occurred after defendant had driven away with McEnery’s body lodged under his car and, therefore, be consistent with guilt. On the other hand, the medical testimony is equally consistent with a finding that McEnery could have died instantly upon impact and, therefore, be consistent with a reasonable conclusion other than the guilt of defendant. It is clear, then, that, the testimony *409of the medical examiner lacking any reasonable medical certainty as to the time of the death of McEnery, we are unable to conclude that on such evidence defendant was guilty of manslaughter beyond a reasonable doubt. Therefore, we conclude, with respect to Indictment No. 70-572, that it was error to deny defendant’s motion for a directed verdict of acquittal. See State v. Dancyger, supra.

We are unable, however, to reach the same conclusion concerning the denial of the motion for a directed verdict of acquittal with respect to Indictment No. 70-573, in which defendant was charged with leaving the scene of an accident. The testimony adduced through the bus driver clearly establishes that at the time McEnery was struck his body was thrown up on the hood of the car and that while the car was standing still the body rolled off the hood and thereupon defendant drove off in a southerly direction. Later, the police found defendant’s station wagon on a side street some 610 feet from the point of impact with McEnery’s body wedged under the front of the car. The circumstances here are clearly consistent with a hypothesis of guilt, but it is clear that they are not consistent with any other reasonable hypothesis. We conclude, therefore, with respect to Indictment No. 70-573, that the trial court did not err in denying the motion for a directed verdict.

Because we conclude that the trial court erred in denying defendant’s motion for a directed verdict of acquittal in the case charging him with manslaughter, it is unnecessary for us to consider his contentions of error concerning his motion for a new trial in that case.

Therefore, we turn to consider his contention that it was error to deny his motion for a new trial in the case charging him with knowingly leaving the scene of an accident. One seeking to set aside a decision of a trial justice on a motion for a new trial has the burden of showing that *410the trial justice was either clearly wrong or that, in reviewing the evidence and the credibility and weight thereof, he misconceived or overlooked some relevant or material evidence on a controlling issue. State v. Correia, 106 R.I. 655, 262 A.2d 619 (1970); State v. Contreras, 105 R.I. 523, 253 A.2d 612 (1969).

In this case we have closely scrutinized the trial justice’s decision on the motion and are persuaded that he exhaustively examined the evidence and, in an exercise of his own independent judgment, passed upon the credibility of the witnesses and the weight to be given to their testimony. He makes it clear in his decision that he found the bus operator, who witnessed the impact, to be entirely credible and that the witness Buckley, who testified as to assisting the defendant to look for his car after the accident, was equally credible. He concluded that their testimony was sufficient to establish beyond a reasonable doubt that the defendant had knowledge that he had struck McEnery and that McEnery had sustained injuries and that the defendant had, with such knowledge, left the scene. In such circumstances we conclude that it was not error to deny the defendant’s motion for a new trial in this case.

The exception of the defendant to the denial of his motion for a directed verdict in the manslaughter case, Indictment No. 70-572, is sustained, and the judgment of conviction is reversed; all of the defendant’s exceptions to rulings in the case charging him with leaving the scene of an accident, Indictment No. 70-573, are overruled; and both cases are remitted to the Superior Court for further proceedings.

*411Richard J. Israel, Attorney General, Donald P. Ryan, Asst. Attorney General, R. Raymond Greco, Special Asst. Attorney General, for plaintiff.

Bevilacqua & Cicilline, Anthony S. DelGiudice, for defendant. '

HUBBART, Judge.

This is an appeal by the defendant Isaac Alejandro Velazquez from a final judgment of conviction and sentence for vehicular homicide which was entered below upon a nolo contendere plea. The defendant, upon entry of such plea, specifically reserved for appeal the denial of his pretrial motion to dismiss the information herein under Fla.R.Crim.P. 3.190(c)(4). The sole issue presented for review is whether a defendant driver of a motor vehicle who participates in a reckless and illegal “drag race” on a public road may be properly convicted of vehicular homicide [§ 782.071, Fla.Stat. (1987)] for the death of one of the co-participant drivers suffered in the course of the “drag race” — when the sole basis for imposing liability is the defendant’s participation in said race. We hold that the defendant may not be held criminally liable under the above statute in such case because the co-participant driver, in effect, killed himself by his voluntary and reckless driving in the subject “drag race” and thus the defendant’s actions in engaging in the said race was not a proximate cause of the co-participant’s death.

I

The defendant Velazquez was charged by information with the crime of vehicular homicide. Specifically, the information alleged that on April 23, 1988, the defendant

“did unlawfully and feloniously operate a motor vehicle in a reckless manner, to wit: Participated in a DRAG RACE, RAN A STOP SIGN and EXCEEDED the SPEED LIMIT with his VEHICLE, and thereby cause the death of ADAL-BERTO ALVAREZ, in violation of 782.-071 Florida Statutes.”

The defendant filed a motion to dismiss this information under Fla.R.Crim.P. 3.190(c)(4) on the ground that the undisputed material facts in the case demonstrated that the state did not, as a matter of law, have a prima facie case of vehicular homicide against the defendant. The defendant set forth in the motion to dismiss certain facts which he swore to be true in open court at the hearing on the subject motion.1 The *349state filed a traverse in which it altered one non-material fact stated in the motion to dismiss and added an additional set of facts based on sworn depositions taken in the case. Accepting the sworn facts stated in the motion to dismiss, as supplemented and altered by the traverse, the material undisputed facts in the case are as follows.

On April 23, 1988, at approximately 2:30 A.M., the defendant Velazquez met the deceased Adalberto Alvarez at a Hardee’s restaurant in Hialeah, Florida. The two had never previously met, but in the course of their conversation agreed to race each other in a “drag race” with their respective automobiles. They, accordingly, left the restaurant and proceeded to set up a quarter-mile “drag race” course on a nearby public road which ran perpendicular to a canal alongside the Palmetto Expressway in Hialeah; a guardrail and a visible stop sign2 stood between the end of this road and the canal. The two men began their “drag race” at the end of this road and proceeded away from the canal in a westerly direction for one-quarter mile. Upon completing the course without incident, the deceased Alvarez suddenly turned his automobile 180 degrees around and proceeded east toward the starting line and the canal; the defendant Velazquez did the same and followed behind Alvarez. Alvarez proceeded in the lead and attained an estimated speed of 123 m.p.h.; he was not wearing a seat belt and subsequent investigation revealed that he had a blood alcohol level between .11 and .12. The defendant Velazquez, who had not been drinking, trailed Alvarez the entire distance back to the starting line and attained an estimated speed of 98 m.p.h. As both drivers approached the end of the road, they applied their brakes, but neither could stop. Alvarez, who was about a car length ahead of the defendant Velazquez, crashed through the guardrail first and was propelled over the entire canal, landing on its far bank; he was thrown from his car upon impact, was pinned under his vehicle when it landed on him, and died instantly from the resulting injuries. The defendant also crashed through the guardrail, but landed in the canal where he was able to escape from his vehicle and swim to safety uninjured.

Based on these facts, the trial court denied the motion to dismiss, finding that it was a question of fact for the jury as to whether the defendant’s participation in the “drag race” was a sufficient legal cause of the deceased’s death so as to support a conviction for vehicular homicide. The defendant subsequently entered a plea of nolo contendere and reserved for appeal the denial of his motion to dismiss; the trial court then placed the defendant on four years probation. This appeal follows.

II

The vehicular homicide statute, under which the defendant was charged and convicted, provides as follows:

“ ‘Vehicular homicide’ is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084.”

§ 782.071(1), Fla.Stat. (1987). There are two statutory elements to vehicular homi-cide: (1) the defendant must operate a motor vehicle in a reckless manner likely to cause the death of, or great bodily harm to, another, and (2) this reckless operation of a *350motor vehicle must be the proximate cause of the death of a human being. Byrd v. State, 531 So.2d 1004, 1006 (Fla. 5th DCA 1988); M.C.J. v. State, 444 So.2d 1001, 1004-05 (Fla. 1st DCA), rev. denied, 451 So.2d 849 (Fla.1984); J.A.C. v. State, 374 So.2d 606, 607 (Fla. 3d DCA 1979), rev. denied, 383 So.2d 1203 (Fla.1980); compare Fla.Std. Jury Instr. (Crim.) 72 (1989) (vehicular homicide).

Contrary to the defendant’s argument, we have no trouble in concluding that the first element of this offense is clearly established on this record. Plainly, the defendant operated a motor vehicle in a reckless manner, likely to cause death or great bodily harm to another, in that (a) he participated in a highly dangerous “drag race” with the deceased on a public road in which both lanes were used as a speedway, and (b) he drove his vehicle at the excessive speed of 98 m.p.h. during the “drag race.” Without question, the defendant’s motor vehicle operation endangered the lives of all persons in the vicinity of the “drag race,” namely, people in other motor vehicles and nearby pedestrians. See McCreary v. State, 371 So.2d 1024 (Fla.1979).

The second element of this offense, however, has given us considerable pause, as no doubt it did the trial court, because no endangered third party in the vicinity of the “drag race” was killed in this case; moreover, it is here that the parties to this appeal marshal their primary authorities and argument. It is therefore necessary that we consult the Florida law on this subject, and survey as well the relevant law thereon throughout the country. Nonetheless, we approach this subject with a certain degree of caution, mindful that the problems raised by the element of “proximate cause” in cases of this nature “present enormous difficulty (especially in homicide [cases]) because of the obscurity of that concept,” an obscurity which has resulted in the announcement of “varying and sometimes inconsistent rules in the numerous areas in which the problem has arisen.” Model Penal Code and Commentaries § 2.03 comment 1, at 255-56 (1985).

A

At the outset, it seems clear that the proximate cause element of vehicular homicide in Florida embraces, at the very least, a causation-in-fact test; that is, the defendant’s reckless operation of a motor vehicle must be a cause-in-fact of the death of a human being. In this respect, vehicular homicide is no different than any other criminal offense in which the occurrence of a specified result, caused by a defendant’s conduct, is an essential element of the offense — such as murder, [§ 782.04, Fla.Stat. (1989)], manslaughter [§ 782.07, Fla.Stat. (1989)], aggravated battery [§ 784.045, Fla.Stat. (1989) ], and arson [§ 806.01, Fla. Stat. (1989) ]. Clearly there can be no criminal liability for such result-type offenses unless it can be shown that the defendant’s conduct was a cause-in-fact of the prohibited result, whether the result be the death of a human being, personal injury to another, or injury to another’s property. To be sure, this cause-in-fact showing is insufficient in itself to establish the aforesaid “proximate cause” element in a vehicular homicide case, but it is clearly a sine qua non ingredient thereof. 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.12(a),(b), at 390-96 (1986); Model Penal Code and Commentaries § 2.03 explanatory note, at 254 (1985).

Courts throughout the country have uniformly followed the traditional “but for” test in determining whether the defendant’s conduct was a cause-in-fact of a prohibited consequence in result-type offenses such as vehicular homicide. Under this test, a defendant’s conduct is a cause-in-fact of the prohibited result if the said result would not have occurred “but for” the defendant’s conduct; stated differently, the defendant’s conduct is a cause-in-fact of a particular result if the result would not have happened in the absence of the defendant’s conduct. Thus, a defendant’s reckless operation of a motor vehicle is a cause-in-fact of the death of a human being under Florida’s vehicular homicide statute [§ 782.071(1), Fla.Stat. (1987)] if the subject death would not have occurred “but for” the defendant’s reckless driving or *351would not have happened in the absence of such driving. 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.12(b), at 393-94 (1986); Model Penal Code and Commentaries § 2.03 and comment 2, at 257-58 (1985); compare Stahl v. Metropolitan Dade County, 438 So.2d 14, 17-18 (Fla. 3d DCA 1983).

In relatively rare cases, however, the “but for” test for causation-in-fact fails and has been abandoned in favor of the “substantial factor” test. This anomaly occurs when two defendants, acting independently and not in concert with one another, commit two separate acts, each of which alone is sufficient to bring about the prohibited result — as when two defendants concurrently inflict mortal wounds upon a human being, each of which is sufficient to cause death. In such case, each defendant’s action was not a “but for” cause of death because the deceased would have died even in the absence of each defendant’s conduct — although obviously not in the absence of both defendants’ conduct considered together. In these rare cases, the courts have followed a “substantial factor” test, namely, the defendant’s conduct is a cause-in-fact of a prohibited result if the subject conduct was a “substantial factor” in bringing about the said result. Thus, each defendant’s conduct in independently and concurrently inflicting mortal wounds on a deceased clearly constitutes a “substantial factor” in bringing about the deceased’s death, and, consequently, is a cause-in-fact of the deceased’s death. 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.12(b), at 394-95 (1986); compare Stahl v. Metropolitan Dade County, 438 So.2d 14, 18 (Fla. 3d DCA 1983).

B

The “proximate cause” element of vehicular homicide in Florida embraces more, however, than the aforesaid “but for” causation-in-fact test as modified by the “substantial factor” exception. Even where a defendant’s conduct is a cause-in-fact of a prohibited result, as where a defendant’s reckless operation of a motor vehicle is a cause-in-fact of the death of a human being, Florida and other courts throughout the country have for good reason declined to impose criminal liability (1) where the prohibited result of the defendant’s conduct is beyond the scope of any fair assessment of the danger created by the defendant’s conduct, or (b) where it would otherwise be unjust, based on fairness and policy considerations, to hold the defendant criminally responsible for the prohibited result. See 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.12(c)-(h), at 396-421 (1986), and cases collected; compare M.C.J. v. State, 444 So.2d 1001, 1004-05 (Fla. 1st DCA), rev. denied, 451 So.2d 849 (Fla.1984); Stahl v. Metropolitan Dade County, 438 So.2d 14, 19 (Fla. 3d DCA 1983).

In deaths resulting from illegal “drag racing” on a public road, as here, it has been held in Florida that the driver of one of the racing vehicles was properly convicted of manslaughter when the driver of another vehicle in the race collided head on with a non-participant motor vehicle which was lawfully using the subject highway, killing the driver of same. Jacobs v. State, 184 So.2d 711 (Fla. 1st DCA 1966). The court reasoned that the defendant, by participating in the “drag race,” was aiding and abetting each of the other participant drivers in the race in committing reckless driving — so that when one of the participants committed a manslaughter in the course of the race against a third party, the defendant was also guilty of manslaughter. In reaching this result, the court relied on the following rules of law stated by Wharton and Clark & Marshall:

“ ‘ * * * If each of two persons jointly engage in the commission of acts which amount to criminal negligence, and as a result of which a third person is killed, each may be found guilty of manslaughter even though it may be impossible to say whose act actually caused the death.’

‘There may be principals in the second degree and accessories before the fact to involuntary manslaughter. Thus, if two men drive separate vehicles at a furious and dangerous speed along the *352highway, each inciting and abetting the other, and one of them drives over and kills a person, the one thus causing the death is guilty of manslaughter as principal in the first degree, and the other is guilty as principal in the second degree. * * *

Jacobs v. State, 184 So.2d at 716 (quoting 1 Wharton, Criminal Law and Procedure § 290 (Anderson 1957) and Clark & Marshall, Crimes, 3d ed. § 164) (emphasis added).

Where, however, a participant passenger in such an illegal “drag race,” accidently grabs the steering wheel of a vehicle involved in the race, instead of the gear shift he was assigned to operate, causing the vehicle to go out of control, crash, and kill the passenger — this court has held that the defendant driver of the subject motor vehicle was improperly convicted of vehicular homicide. J.A.C. v. State, 374 So.2d 606 (Fla. 3d DCA 1979), rev. denied, 383 So.2d 1203 (Fla.1980). The court reasoned that the passenger’s reckless act of grabbing the steering wheel was an independent intervening act which superseded the respondent’s wrongful conduct in participating in the “drag race.” Id. at 607. Although, obviously, the respondent’s participation in the subject race was a “but for” cause-in-fact of the passenger’s death and such death was plainly within the scope of the danger created by the defendant’s conduct in participating in the race — this court nonetheless implicitly concluded that it would be unjust to hold the defendant criminally responsible for the passenger’s death because the passenger, in effect, killed himself by his own reckless conduct.

The result reached in J.A.C. is in accord with the weight of better-reasoned decisions on this subject throughout the country. These courts have uniformly concluded that a driver-participant in an illegal “drag race” on a public road cannot be held criminally responsible for the death of another driver participant when (a) the deceased, in effect, kills himself by his own reckless driving during the race, and (b) the sole basis for attaching criminal liability for his death is the defendant’s participation in the “drag race.” 3 The policy reasons for reaching this result are best expressed in State v. Petersen, 17 Or.App. 478, 495, 522 P.2d 912, 920 (1974) (Schwab, C.J., dissenting) (dissent adopted by the Oregon Supreme Court in State v. Petersen, 270 Or. 166, 526 P.2d 1008 (1974)):

“[T]he question is whether defendant’s reckless conduct ‘caused’ the death of the victim. The problem here is not ‘causation in fact,’ it is ‘legal causation.’ In unusual cases like this one, whether certain conduct is deemed to be the legal cause of a certain result is ultimately a policy question. The question of legal causation thus blends into the question of whether we are willing to hold a defendant responsible for a prohibited result. Or, stated differently, the issue is not causation, it is responsibility. In my opinion, policy considerations are against imposing responsibility for the death of a participant in a race on the surviving racer when his sole contribution to the death is the participation in the activity mutually agreed upon.

It is not unheard of for people to engage in hazardous vocations and avocations. It could be said, for example, that professional racetrack drivers earn their living by consciously disregarding a substantial risk that death will occur on the racetrack. Yet, it would probably strike most people as strange if the surviving drivers were prosecuted for manslaughter following a fatal racetrack acci-' dent....

My point is that people frequently join together in reckless conduct. As long as all participants do so knowingly and voluntarily, I see no point in holding the survivor(s) guilty of manslaughter if the reckless conduct results in death.... ”

*353522 P.2d at 920-21 (citations and footnote omitted). LaFave and Scott also summarize the legal basis for these decisions:

“It is submitted that the true reason for the holding [in these cases] is the court’s feeling ... that A should not, in all justice, be held for the death of B who was an equally willing and foolhardy participant in the bad conduct which caused his death.”

1 W. LaFave and A. Scott, Substantive Criminal Law § 3.12, at 418 (1986).

Ill

Turning now to the instant case, it is clear that the defendant’s reckless operation of a motor vehicle in participating in the “drag race” with the deceased was, technically speaking, a cause-in-fact of the deceased’s death under the “but for” test. But for the defendant’s participation in the subject race, the deceased would not have recklessly raced his vehicle at all and thus would not have been killed. However, under the authority of J.A.C. and the better reasoned decisions throughout the country, the defendant’s participation in the subject “drag race” was not a proximate cause of the deceased’s death because, simply put, the deceased, in effect, killed himself by his own volitional reckless driving—and, consequently, it would be unjust to hold the defendant criminally responsible for this death.

The undisputed facts in this case demonstrate that the “drag race” was, in effect, over when the defendant and the deceased had completed the agreed-upon one-quarter mile course and had crossed the finish line. Unexpectedly, however, the deceased suddenly whirled his vehicle around and headed back toward the starting line and the canal which ran perpendicular to the road on which he was travelling; although the defendant then followed, it is plain that it was the deceased's sole decision to return to the starting line, as apparently this had not previously been agreed upon. At any rate, the deceased, who had consumed a considerable amount of alcohol and was wearing no seat belt, attained an estimated speed of 123 m.p.h. on his return trip; applied the brakes as he approached the end of the road but was unable to stop; crashed through a protective guard rail; and incredibly vaulted the entire canal, landing on the far bank. He was thrown from his vehicle upon impact, was pinned under the vehicle when it landed on him, and died instantly from the resulting injuries. Although the defendant was about one-car length in back of the deceased during the deceased’s fatal return to the starting line, the defendant at no time struck the deceased's vehicle and did not physically propel it in any way across the canal. Clearly, the deceased was on a near-suicide mission when, on his own hook, he returned to the starting line of the race after the race was apparently over, attaining a murderous speed of 123 m.p.h., vaulted a canal, and killed himself. This being so, it would be unjust to hold the defendant criminally responsible for the deceased’s unexpected and near-suicidal conduct.

We agree that if the deceased had collided with an oncoming motorist who happened to be in the vicinity lawfully using the subject road resulting in the said motorist’s death, the defendant would be criminally liable for this death on an aiding- and-abetting theory; clearly, the deceased would be guilty of vehicular homicide in killing the oncoming motorist, and the defendant, in participating in the illegal “drag race,” would be aiding and abetting the deceased in the latter’s reckless driving and ultimate negligent homicide. Jacobs v. State, 184 So.2d 711 (Fla. 1st DCA 1966). In such a case, however, the oncoming motorist could in no way be said to be responsible for his own death and, consequently, no policy or fairness reason would exist for finding no proximate cause. Clearly, this cannot be said in the instant case.

The state nonetheless relies on cases from other jurisdictions which have reached a contrary result to the one we reach herein.4 We have reviewed these cases, but are not persuaded by their rea-*354soiling because we think they lead to an unjust result. In our judgment, it is simply unfair, unjust, and just plain wrong to say that the defendant in the instant case is criminally responsible for the death of the deceased when it is undisputed that the deceased, in effect, killed himself. No one forced this young man to participate in the subject “drag race”; no one forced him to whirl around and proceed back toward the canal after the race was apparently over; no one forced him to travel 123 m.p.h., vault a canal, and kill himself upon impact. He did all these things himself, and was, accordingly, the major cause of his own death. We are constrained by law to construe criminal statutes strictly in favor of the accused, § 775.021(1), Fla.Stat. (1989), and, given this salutary principle of statutory construction, we are unwilling to construe our vehicular homicide statute to impose criminal liability on the defendant under the circumstances of this case.

The final judgment of conviction and sentence under review is reversed, and the cause is remanded to the trial court with directions to grant the defendant’s motion to dismiss.

Reversed and remanded.

SAWYER, P.J.

Defendant was convicted, following a jury trial, of operating a motor vehicle while intoxicated (OWI) or while visibly impaired (OWVD and thereby causing death.1 He was sentenced to serve 3 to 15 years in prison. He now appeals and we reverse and remand.

At 2:00 a.m. on November 23, 2003, defendant was driving his sport utility vehicle (SUV) east on 17 Mile Road in northern Kent County. He attempted to turn north onto Edgerton Avenue and drove into the path of an oncoming car driven by Jason Reichelt. Reichelt’s car hit defendant’s SUV and spun 180 degrees, coming to rest on the centerline of 17 Mile Road. The SUV came *604to rest on the side of the road. It was later determined that defendant had a blood alcohol concentration of 0.16, which is twice the legal limit.2

Reichelt and his passenger, Jonathan Keiser, were not seriously injured, but Reichelt’s car was severely damaged and the headlights stopped working. Both men left the car and walked to the SUV to determine if anyone was injured. After speaking briefly with defendant, the two men walked back to Reichelt’s car. Reichelt indicated that he was aware that oncoming cars could hit his darkened car and that he wanted to determine if he could turn on the flashers. As Reichelt and Keiser stood by the car, an oncoming car driven by Tonya Welch hit Keiser, killing him.

At the center of this appeal is the issue of causation. Defendant argues that not only did the trial court improperly instruct the jury on causation, there was also insufficient evidence of causation to establish defendant’s guilt. Because the two issues are intertwined with the question of what must be proven to establish causation in such a case, we shall analyze both issues together beginning with a determination of what the prosecutor must show to establish causation.

As the Supreme Court discussed in People v Schaefer,3 causation consists of two components:

In criminal jurisprudence, the causation element of an offense is generally comprised of two components: factual cause and proximate cause. The concept of factual causation is relatively straightforward. In determining whether a defendant’s conduct is a factual cause of the result, one must ask, “but for” the defendant’s conduct, would the result have occurred? If the result would not have occurred absent the defendant’s conduct, then factual causation exists.

*605The existence of factual causation alone, however, will not support the imposition of criminal liability. Proximate causation must also be established. As we noted in [People v] Tims[, 449 Mich 83, 96; 534 NW2d 675 (1995)], proximate causation is a “legal colloquialism.” It is a legal construct designed to prevent criminal liability from attaching when the result of the defendant’s conduct is viewed as too remote or unnatural. Thus, a proximate cause is simply a factual cause “of which the law will take cognizance.”[4]

We initially note that there is no dispute at this point that defendant was intoxicated and that his driving was the cause of the initial accident.4 5 Furthermore, there is no argument that defendant’s driving was the factual or “but-for” cause of the second accident. This analysis is relatively straightforward: but for defendant causing the initial accident, the subsequent accident would not have occurred.

Of course, factual causation is relatively easy to establish. As the court in Welch v State observed, “[m]ankind might still be in Eden, but for Adam’s biting an apple.”6 But the question whether defendant is the proximate cause of the subsequent accident, and thus of the victim’s death, is not so easily resolved. Schaefer discussed this requirement in further detail:

For a defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a “direct and natural result” of the defendant’s actions. In making this determination, it is necessary to examine whether there was an *606intervening cause that superseded the defendant’s conduct such that the causal link between the defendant’s conduct and the victim’s injury was broken. If an intervening cause did indeed supersede the defendant’s act as a legally significant causal factor, then the defendant’s conduct will not be deemed a proximate cause of the victim’s injury.

The standard by which to gauge whether an intervening cause supersedes, and thus severs the causal link, is generally one of reasonable foreseeability. For example, suppose that a defendant stabs a victim and the victim is then taken to a nearby hospital for treatment. If the physician is negligent in providing medical care to the victim and the victim later dies, the defendant is still considered to have proximately caused the victim’s death because it is reasonably foreseeable that negligent medical care might be provided. At the same time, gross negligence or intentional misconduct by a treating physician is not reasonably foreseeable, and would thus break the causal chain between the defendant and the victim.

The linchpin in the superseding cause analysis, therefore, is whether the intervening cause was foreseeable based on an objective standard of reasonableness. If it was reasonably foreseeable, then the defendant’s conduct will be considered a proximate cause. If, however, the intervening act by the victim or a third party was not reasonably foreseeable — e.g., gross negligence or intentional misconduct — then generally the causal link is severed and the defendant’s conduct is not regarded as a proximate cause of the victim’s injury or death.[7]

With these basic principles in mind, we conclude that the trial court improperly instructed the jury on the issue of proximate cause. We review claims of instructional error de novo.8 The trial court is required to instruct jurors on “all elements of the crime charged and must not exclude consideration of material issues, *607defenses, and theories for which there is supporting evidence.”9 Instructions are to be read as a whole and not piecemeal to determine if error requiring reversal occurred.10 “It is error for the trial court to give an erroneous or misleading jury instruction on an essential element of the offense.”11

The trial court gave detailed and extensive instructions on factual causation, including reinforcement of the concept that defendant had to he “a” cause of the accident, but not necessarily “the” cause of the accident. But the trial court’s instructions on proximate cause and superseding intervening causes were virtually nonexistent. The trial court did implicitly touch on the issue of proximate cause when it instructed the jury that one of several causes “is a substantial factor in causing a death if, but for that cause’s contribution, the death would not have occurred, unless the death was an utterly unnatural result of whatever happened.” But the instructions also told the jury that another cause could be a superseding cause only if it was the sole cause:

Now it also necessarily follows that somebody else’s conduct, for example, by Mr. Keiser, or by some third party, even if that other conduct was wrong or itself negligent, does not cut off criminal liability unless the other cause was the only cause. Obviously, if somebody else’s conduct was the only reason Mr. Keiser died, then it can’t possibly be something to which Mr. Rideout contributed.

This is not a correct statement of the law. A superseding intervening cause does not need to be the only cause. Indeed, as the Court noted in Schaefer, while the defendant’s conduct in that cause was a factual cause of *608the accident, the victim’s conduct may also have been a cause and, more to the point, potentially a superseding cause.12 The effect of the trial court’s instructions was that the jury could convict defendant if they found him to be a factual cause of the accident and that the jury could find the existence of a superseding intervening cause only if that superseding intervening cause was the only cause of the second accident. The jury was not adequately instructed on the issues of proximate and intervening causes.13

This conclusion is enough to set aside defendant’s conviction, with directions to the trial court to properly instruct the jury on the causation issue. But we agree with defendant that the problem in this case goes even deeper, because there was insufficient evidence to establish proximate cause at all. We review a claim of insufficient evidence in a criminal trial de novo.14 We view the evidence in a light most favorable to the prosecution to determine if a rational trier of fact could find beyond a reasonable doubt that the essential elements of the crime were established.15

The troubling aspect of this case is that the second accident only occurred after Keiser had reached a position of safety (the side of the road) and then chose to reenter the roadway with Reichelt to check on the car. While foreseeability is the “linchpin” of the superseding causation analysis,16 and it is at least arguably foreseeable that a person involved in an accident would *609check on his or her vehicle even if it remains on the road, the analysis does not end there. As Professor Dressier discusses in Understanding Criminal Law (3d ed),17 there is no universal test for determining if an intervening cause is also a superseding cause:

One early twentieth century scholar observed that all efforts to set down universal tests that explain the law of causation are “demonstrably erroneous.” [Jeremiah Smith, Legal Cause in Actions of Tort, 25 Harv L R 223, 317 (1912).] There are no hard-and-fast rules for determining when an intervening cause supersedes the defendant’s conduct. However, there are various factors that assist the factfinder in the evaluative process.

Indeed, Dressier18 points out that to say that foreseeability is the “linchpin” is “a slight overstatement,” though it is of great significance. Rather, Dressier19 discusses six factors to be considered in determining if an intervening cause is a superseding cause.

Of the six factors discussed by Dressier, three are not relevant here. They are the (1) de minimis contribution to social harm factor, (2) the intended-consequences doctrine, and (3) the omissions factor.20 The foreseeability factor is relevant here, but its application is less than clear. As Dressier points out, a responsive intervening cause will establish proximate cause, while a coincidental intervening cause will not unless it was foreseeable.21 In discussing responsive intervening causes, Dressier points to the examples of a passenger in a capsized boat drowning while attempting to swim to shore and a wounded victim being negligently treated *610and dying. That is, the harm results from actions taken in response to the defendant’s conduct. A coincidental intervening cause would exist, for example, where the defendant’s conduct put the victim in the “wrong place at the wrong time,” such as an assault victim who is attacked by a “knife-wielding maniac” while waiting in the emergency room for treatment of the initial wounds.22

Whether the intervening cause is responsive or coincidental in the case at bar is arguable at best. On the one hand, the victim reentering the roadway to check on the vehicle was in direct response to the accident, though not in direct response to defendant’s having driven. On the other hand, Welch’s driving down the road when she did was entirely coincidental.

In our view, Reiser’s decision to reenter the roadway renders the foreseeability factor of little value to the analysis. Rather, that decision directly involves the two remaining factors identified by Dressier that are present here. Those two factors, we believe, compel the conclusion that the intervening cause of the second accident was also a superseding cause.

First, there is the apparent-safety doctrine, which Dressier describes as follows:

One scholar has observed that when a “defendant’s active force has come to rest in a position of apparent safety, the court will follow it no longer.” [Joseph H. Beale, The Proximate Consequences of an Act, 33 Harv L R 633, 651 (1920).] For example, consider a somewhat simplified version of the facts in State v Preslar [48 NC 421 (1856)]: D threatened the life of V, his spouse. As a consequence, V was forced to leave the house on a freezing night in order to protect herself. V walked to within 200 yards of her father’s home, where she would have been welcome, but she chose *611to spend the night in the extreme cold, rather than bother her father by entering the house. V froze to death during the night. Clearly, D was an actual cause of V’s death: but for D’s threatening conduct, V would not have gone out into the cold. But, V’s decision to sleep outside was also a but-for cause of her own death. Is D the proximate cause of V’s death? The court in Preslar answered this question in the negative.

The result may be explained in terms of the apparent-safety doctrine. D did not follow V from their home. When V reached the vicinity of her father’s house, she knew that she could enter and be free from immediate harm. Therefore, her decision to sleep outside constituted a superseding intervening cause.[23]

Similarly, in the case at bar, Reiser had reached a position of apparent safety: he had gotten out of the vehicle and was alongside the road, off the pavement. Had the second accident occurred before Reiser could extricate himself from the Reichelt vehicle and get to the side of the road, then the causal chain would have been intact. But he was able to get out of harm’s way and to a relatively safe position at the side of the road. He then made the choice to return to the roadway and place himself in a more dangerous position. Like the victim in Preslar, Reiser made a decision regarding his actions after the immediate danger was over. And that decision, like the decision in Preslar, ended the initial causal chain and started a new one, one for which defendant was not responsible.

The point of a person making a decision brings us to the remaining factor discussed in Dressier, that of voluntary human intervention:

A defendant is far more apt to be relieved of criminal responsibility in the case of a “free, deliberate, and informed” [Hart & Honoré, Causation in the Law (2d ed *6121985), p 326] — a voluntary, knowing, and intelligent— human agent than in the case of an intervention of a natural force or the actions of a person whose conduct is not fully free. The result in the Preslar case, described [above], can be explained in terms of this factor. V chose to sleep in the cold rather than to enter her father’s home. Her decision was free, deliberate, and with full knowledge of the fact that it was exceedingly cold outside. Under these circumstances, the responsibility for her death is shifted from D to V. This outcome is consistent with the retributive principle that accords special significance to the freewill actions of human agents.[24]

Similarly, in the case at bar, Reiser made the voluntary decision to return to the vehicle on the roadway, despite the danger that it posed. He could have chosen to remain on the side of the road. He chose instead to reenter the roadway, with the danger of standing in the roadway next to an unlit vehicle in the middle of the night being readily apparent.

In sum, we conclude that the prosecution failed to present sufficient evidence to establish that defendant’s actions were a proximate cause of Reiser’s death. Therefore, we vacate defendant’s conviction for OWI/OWVT causing death.

There remains the problem of the remedy. Under People v Randolph,25 while defendant cannot be retried on the charge for which we found insufficient evidence, we can direct the entry of a conviction for a necessarily included lesser offense on which the jury was instructed. In this case, the jury was instructed on two lesser offenses: operating a motor vehicle while under the influence of intoxicating liquor26 and operating a *613motor vehicle while visibly impaired (OWVI).27 A charge of OWI/OWVI causing death may be based on the commission of either of those offenses. MCL 257.625(4). Therefore, in convicting defendant of OWI/OWVI causing death, the jury of necessity had to find that defendant was either operating while intoxicated or operating while visibly impaired. But the nature of the verdict form renders it impossible to determine which of the two the jury found to be the case. Accordingly, we believe that the appropriate remedy is to direct the trial court to enter a conviction for the lesser offense, OWVI, and to sentence defendant for that offense. If the prosecutor believes that a conviction on the greater offense of OWI28 would better serve the interests of justice, he may, at any time before sentencing, inform the trial court that he wishes to try defendant on a charge of OWI instead of a conviction being entered under MCL 257.625(3).

In light of our resolution of the above issues, we need not decide defendant’s remaining issue.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.