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¶ 13 (App. 2013) (stating a defendant must “affirmatively prove prejudice and may not rely upon speculation to carry his burden” under fundamental error review) (internal quotation omitted).

(defendant has burden to establish prejudice in fundamental error review); ¶ 13 (App. 2013) ("[A defendant] must affirmatively 'prove prejudice' and may not rely upon 'speculation' to carry his burden [of establishing reversible fundamental error]."); (evidentiary error deemed harmless in light of remaining overwhelming evidence of g

See Neder v. United States, 527 U.S. 1, 18–20 (1999) (finding harmless error when jury instructions omitted an element of the offense, but the “omitted element is supported by uncontroverted evidence”); –31, 533, ¶¶ 10–12, 22 (App. 2013) (finding no reversible error where jury instruction misstated an element of the offense but defendant failed to show prejudice in light of facts and defense theory).

¶ 13 (App. 2013) (“[A defendant] must affirmatively ‘prove prejudice’ and may not rely upon ‘speculation’ to carry his burden [of establishing reversible fundamental error].”).

Moreover, to prove prejudice, Brenda “must show that a reasonable [fact-finder] could have reached a different result.” ¶ 13 (App. 2013) (internal quotation marks omitted) ( ¶ 15 (App. 2013)).

See, ¶ 13, ( ¶ 14, ) (stating that under fundamental error review, a defendant “must affirmatively ‘prove prejudice’ and may not rely upon ‘speculation’ to carry his burden”).

¶ 13 (App. 2013) ( ¶ 14 (App. 2006)).

¶¶ 11-12 , -86 (App. 2013) (instructions allowing jury to convict defendant of attempted second-degree murder by finding he knew conduct would cause serious physical injury constitute fundamental error because no such offense exists).

¶ 13 (App. 2013) (quotation omitted).

Prejudice under fundamental error review “is a fact-intensive inquiry, the outcome of which will ‘depend [] upon the type of error that occurred and the facts of a particular case.’ ” ¶ 13

¶27 We conclude reversal is not warranted in this case because Defendant has failed to prove that the error was fundamental “in light of the facts and circumstances of his case.” ¶ 12 (App. 2013) (finding that the error may be fundamental in one case but not in another).

A. Fundamental Error ¶ 14 “[Instructing a jury on a nonexistent theory of criminal liability is fundamental error.” ¶ 12 , ¶ 13

¶13 Both Juarez-Orci and the state agree that the instructions given in this case “are not materially different” P.3d 1282 (App. 2013).

A defendant seeking to establish fundamental error must “affirmatively ‘prove prejudice’ and may not rely upon ‘speculation’ to carry his burden.” ¶ 13, (citation omitted).

(attempted second-degree murder requires intent to kill victim or knowledge conduct would cause death); 2 Wayne R. LaFave, Substantive Criminal Law § 11.3 (2d ed. 2013) (on charge of attempted murder not sufficient to show defendant intended to do serious bodily harm).