included offense instructions requested by a party constitutes error, as does the trial court’s failure to give an appropriate included offense instruction that has not been requested. Such error, however, is harmless when the jury convicts the defendant of the charged offense or of an included offense greater than the included offense erroneously omitted from the instructions. The error is harmless because jurors are presumed to follow the court’s instructions, and, under the standard jury instructions, the jury, “in reaching a unanimous verdict as to the charged offense [or as to the greater included offense, would] not have reached, much less considered,” [Holbron ], 80 Hawai'i [at] 47, 904 P.2d [at 932,] the absent lesser offense on which it should have been instructed. [Id.] (<HOLDING>). To the extent that [State v.]Kupau [, 76
holding due process clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the charged offense and new york law that requires the defendant in a second degree murder prosecution to prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter when no element of the charged offense is presumed does not violate the due process clause holding that the trial courts erroneous instruction on the nonexistent included offense of attempted reckless manslaughter was harmless beyond a reasonable doubt where the jury reached a unanimous guilty verdict as to the charged offense of attempted murder in the second degree holding that defendants conviction    must be vacated where defendant argued that trial court committed plain error in instructing jury on nonexistent crime of attempted second degree murder holding that appellate counsel was ineffective in failing to argue based on the first districts decision in montgomery that the standard attempted manslaughterbyact instruction was fundamentally erroneous where betts was charged with attempted firstdegree premeditated murder and convicted of the necessary lesserincluded offense of attempted seconddegree murder holding that where jury had opportunity to convict defendant of manslaughter but convicted of greater offense of second degree murder refusing to give instruction on negligent homicide was if error harmless