OPINION
Charles Elijah Anderson appeals his convictions for the robbery and murder of Demecio Ulibarri. The major issue to be decided is whether SCRA 1986, 11-410 (rule of evidence regarding inadmissibility of offer to plead and statements made in connection with such offer) (“Rule 410”) makes inadmissible Anderson’s statement to a Texas law enforcement officer that he would confess to the New Mexico murder in exchange for the dropping of Texas burglary charges. Finding that the statement was not made in reliance on Rule 410, as a result of inducement by the state, nor during formal plea negotiations, we affirm.
Facts. Between October 12 and 18, 1989, Anderson, his girlfriend Melinda Sosa, and Helen Robinson stayed at a Santa Fe motel about two-tenths of a mile from the gas station where the crimes were committed. The Salvation Army paid for the motel room the 12th and 13th, but Anderson paid cash on the 14th and 15th and worked in exchange for the room the 16th and 17th. None of the three had any money on the morning of the 14th. On the afternoon of the 14th, Anderson returned to the motel room visibly upset, with blood on his clothing and body, and told Sosa that he had messed up. Anderson had purchased liquor and cigarettes and gave Sosa some money.
After leaving Santa Fe, Anderson went to Texas, where six months later he and Sosa were arrested and charged with commercial and residential burglary. Shortly before this arrest, Anderson had told Sosa that in October he had “choked a kid to death” in Santa Fe. Sosa told the Texas police about Anderson’s confession to her. The Texas officials notified Santa Fe authorities of Sosa’s claim.
While in custody on the Texas charges, Anderson agreed to talk to Santa Fe detectives about the murder. After receiving Miranda warnings, Anderson signed a card stating that he waived his Miranda rights. He later made several implicatory statements to the Santa Fe detectives, including a statement that he had been at the murder scene *601when Ulibarri was killed by a third person whom he knew. After having been told that Sosa had incriminated him, and during a break in questioning about the New Mexico crimes, Anderson said to Texas Officer Olson, who was guarding him, “I’d like to make a deal.” Officer Olson replied, “What?” Anderson then stated, “I’ll give you a confession if we can work something out.” Officer Olson testified that Anderson proposed that he would confess to the Santa Fe murder if the Texas charges were dropped and the agreement was in writing.
Relevant statements are made inadmissible by Rule 110 only when defendant has relied upon the rule or upon inducement by the state in breaking his silence. Though at trial Anderson did not specify Rule 410 in his objection to the admission into evidence of his statements to Officer Olson, the trial court’s comments indicate that it was adequately apprised of the application of the rule. See Albertson v. State, 89 N.M. 499, 501, 554 P.2d 661, 663 (1976) (no waiver by failure to raise specific objection when court alerted to the impropriety of questioning). Rule 410 states:1
Evidence of a plea of guilty, later withdrawn, ... or of an offer to plead guilty ... to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.
This Court has interpreted Rule 410 only once, in State v. Trujillo, 93 N.M. 724, 605 P.2d 232 (1980). In that ease, in dictum, we stated:
For purposes of clarification, we wish to distinguish between the plea negotiation process and custodial police interrogations. As to the admissibility of statements made during each, Rule 410 applies to the former and established standards of voluntariness and relevancy apply to the latter.
Id., 93 N.M. at 727, 605 P.2d at 235. In Trujillo, the prosecution sought to admit for impeachment purposes a statement related to a failed plea agreement. It was not necessary for this Court to analyze what constitutes the negotiation process, who must be present, or whether formal charges must exist.
The New Mexico rule is based upon the original Federal Rule of Criminal Procedure 11(e)(6). The federal rule was amended in 1979 to clarify that it excluded only statements made in the course of plea discussions with an attorney representing the government. There is federal case law interpreting both the original and amended rules. Both Anderson and the State argue that federal case law should be followed by this Court. Anderson urges adoption of the analysis developed before the amendment of the corresponding federal rule; the State urges adoption of analysis developed after the clarifying amendment.
—Interpretation urged by defendant. Anderson urges this Court to use the federal common-law two-tier analysis to determine whether a defendant’s statement is considered a plea negotiation: First, the court determines “whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion,” and, second, the court determines whether the accused’s expectation that he was actually engaged in plea negotiations “was reasonable given the totality of the objective circumstances.” United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.1978) (en banc); United States v. Pantohan, 602 F.2d 855, 857 (9th Cir.1979). Several states have adopted this analysis since the amendment. See, e.g., People v. Rolih, 233 Ill.App.3d 484, 174 Ill.Dec. 648, 651, 599 N.E.2d 194, 197 (1992), appeal denied, 148 Ill.2d 650,183 Ill.Dec. 28, 610 N.E.2d 1272 (1993); People v. Oliver, 111 Mich.App. 734, 314 N.W.2d 740, 751 (1981), disapproved on other grounds by People v. Williams, 422 Mich. 381, 373 N.W.2d 567, 572 (1985).
Anderson argues that both tiers of the Robertson test are satisfied, but the State counters that, should this Court decide to follow the two-tier analysis, Anderson did not manifest a subjective expectation that he was *602engaged in negotiations because his statement was not an offer to plead guilty; and, even if he did manifest a subjective expectation, it could not have been reasonable because no one was present with authority to plea bargain.
—Interpretation urged by the State. The State argues that New Mexico courts should follow the amended federal rule of excluding statements only if they are made after a defendant has been charged, during formal plea negotiations when an attorney for the state or the attorney’s agent is present, and when the defendant reasonably understands that he is engaging in the bargaining process. See Fed.R.Crim.P. 11(e)(6)(D) (rule amended in 1979 to clarify that it covered only statements made in course of plea discussions with an attorney for the government ); Fed.R.Crim.P. 11(e)(6) advisory committee’s note (stating that 1979 amendment manifests intention to move away from earlier federal decisions suggesting that Rule 11 could be applied to police custody situations; statements made in those situations should be covered by body of law dealing with police interrogations); see also United States v. Penta, 898 F.2d 815, 818 (1st Cir.) (holding that statements are not plea discussions when made by unindicted defendant to U.S. attorney and investigator, when attorney was openly trying to build case against defendant’s associates and defendant feared he also would be indicted; holding ‘plea discussions’ not to include anything outside actual plea discussions), cert. denied, 498 U.S. 896, 111 S.Ct. 246, 112 L.Ed.2d 205 (1990); cf. United States v. Grant, 622 F.2d 308, 313 (8th Cir.1980) (holding that rule excludes statements made to agent for U.S. attorney where the agent informed defendant he was authorized to make offer).
The State also urges that we follow Colorado’s lead and hold that the New Mexico rule is equivalent to the federal rule after the federal amendment. The Colorado rule, which (like the rule in New Mexico) is based on the original federal rule, has been interpreted to apply only to discussions involving an attorney for the state. One Colorado court has stated:
The policy which precludes admission of communications made during plea bargaining necessarily restricts plea bargaining to those negotiations involving a prosecuting attorney with authority to bind the government in a courtroom settlement____ [Otherwise], virtually any inculpatory statement by a suspect to police could be viewed as an effort to obtain leniency and, thus, a form of “plea bargaining” inadmissible in the prosecution’s case in chief.
People v. Rollins, 759 P.2d 816, 818 (Colo.Ct.App.1988), cert. denied.
The State further argues that Anderson’s statement was not a plea, but an offer to confess that is not subject to the protection of the rule. At least one federal court has held that an offer to confess is not a plea negotiation, even if bargained for. See Robertson, 582 F.2d 1356, 1369. In Robertson, the court found that there had been a “confession bargain” but affirmed the conviction because the defendant only offered to make incriminating statements and did not indicate any desire to plead guilty. See also United States v. Sikora, 635 F.2d 1175, 1175-76 (6th Cir.) (holding no violation of Rule 11 when defendant has not tendered plea, proposal for plea, or proposal to negotiate), cert. denied, 449 U.S. 993, 101 S.Ct. 530, 66 L.Ed.2d 290 (1980). The State urges that this Court make a distinction between offering to confess and offering to plead guilty because confessions have their own test of admissibility and because the result of confessing to a crime is not the same as pleading guilty to a crime.
—Reliance, natural and irrebuttable presumptions. As we said in Trujillo, the purpose of Rule 410 is to encourage negotiations between the defendant and the state. 93 N.M. 724, 727, 605 P.2d 232, 235. In order to make a deal, a defendant certainly is more likely to forego the right to silence once he becomes aware of the protection of the rule. Awareness would be expected to result from explanation either by his counsel or the state’s attorney, but whether the defendant relies on the rule depends on the facts of any given case. It is our view that the determinative factor in excluding statements pursuant to the rule is whether it may be naturally *603inferred that the defendant relied on the rule in deciding to break silence, because the rule encourages cooperation only if the defendant relied on it.
By “reliance on the rule” we do not mean necessarily some identification with, or understanding of, the rule as written, but rather reliance on a subjective belief in the substance of the rule: offers to plead and related statements are inadmissible and cannot be used against the declarant. The dissent to this opinion makes the point that “reliance” rationale is unprecedented and unsupported by authorities cited in this opinion. Yet, this Court and others have said that the purpose of the rule is to encourage negotiations and, in fairness to the defendant, to make inadmissable an offer to plead. We do not believe it is unprecedented rationale to state that “encouragement” connotes a subjective sense of confidentiality or that “fairness” connotes an absence of reliance or inducement that might otherwise call into question the voluntariness of an inculpatory statement. We simply are analyzing the meaning of “encouragement” in the context of an offer to plead. The privilege to participate in open and uninhibited discussions in a lawyer-client or a psychotherapist-patient relationship, as discussed in the dissent, is founded on the reasonable expectations of the client or patient and on a policy that recognizes merit to society in the advancement of candor, trust, and productivity in those relationships. To the contrary, once a suspect has been taken into custody and warned that any statement may be used in court, that person has no reasonable expectations of confidentiality. The interest of society and law enforcement is then limited only by the individual constitutional rights of the accused and the fair application of a rule that in fact has encouraged offers to plead.
Further, to assure “fairness”, when a suspect is induced by the state to engage in plea negotiations, as in formal plea negotiations with a state attorney (or an agent of the attorney), there will be an irrebuttable presumption that such person has relied on the rule in breaking his silence, and all statements made during the course of “making a deal” are inadmissible in future proceedings, whether the statements are offers to confess or offers to plead guilty, and regardless of whether the declarant has been formally charged with a crime. The court may be guided by the established standards of voluntariness in finding inducement by the state.
Therefore, absent a finding by the court that statements were made with the belief they could not be “held against” the declarant, if a defendant or suspect makes uninduced statements after receiving Miranda warnings (i.e., being told that any statement made may be used against such person in court), there is no reason to presume that such person was motivated to make inculpatory statements in reliance on some rule of inadmissibility. In succeeding paragraphs we consider the validity of this holding in the light of authorities relied on by Anderson.
Anderson relies heavily on United States v. Herman, 544 F.2d 791 (5th Cir.1977). Herman, however, has been overturned legislatively by the 1979 amendment to Rule 410, see United States v. Keith, 764 F.2d 263, 265 (5th Cir.1985), and is no longer relied on by the Fifth Circuit. After having been advised of his right to remain silent, Herman initiated a conversation with a postal inspector who accompanied him to a hearing. In the conversation, with no inducement by the inspector, Herman offered to plead guilty to robbery if murder charges were dropped and stated he would not disclose where the murder weapon was located until he talked to an attorney. The court affirmed the district court’s order suppressing defendant’s statement. Herman, 544 F.2d at 794. Although, in our opinion, the Herman court did not properly apply the rule to the facts of the case and obtained the wrong result, we believe the Herman principles are good law. The opinion supports our view that, before statements made by a defendant will be excluded, the defendant must either know that the statements will be protected or detrimentally rely on inducement or promises made by the state. The Herman court wrote:
The accused in the pretrial bargaining should be encouraged by knowledge that the discussions will have a sanctity____ Having embarked on the road that permits plea bargaining, the government should be *604most careful lest it be accused of bad faith in throwing open to the trial matters that the accused thought were not to be used against him or her____ To allow the government to induce statements uttered in reliance on the rule would be to use the rule as a sword rather than a shield.
544 F.2d at 797 (emphasis added). In Herman, as in this case, none of the above conditions existed.
We disapprove of the results in United States v. Brooks, 536 F.2d 1137 (6th Cir.1976), superseded by statute as stated in United States v. Sebetich, 776 F.2d 412 (3d Cir.1985), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988), and People v. Friedman, 79 Ill.2d 341, 38 Ill.Dec. 141, 403 N.E.2d 229 (1980) (applying the corresponding Illinois rule). As the foundation of their holdings, both cases cite Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and cases relying on that opinion. See Brooks, 536 F.2d at 1139; Friedman, 38 Ill.Dec. at 147, 403 N.E.2d at 235. Neither court recognized the significant factual distinctions between Santobello and the cases before them. The defendant in Santobello had entered a guilty plea that the state sought to introduce in a later trial after the plea was withdrawn. There, the defendant and the attorney general had engaged in formal plea negotiations, leading to a plea that was eventually abandoned. Santobello, 404 U.S. at 258, 92 S.Ct. at 497. In Brooks, by contrast, the accused voluntarily called a postal inspector and offered to plead guilty if given a maximum sentence of two years. 536 F.2d at 1138. The Brooks court did not discuss whether the defendant relied on the protection of Rule 410 or whether the prosecution induced the defendant into making.the contested statements and held that statements in the nature of plea bargains or attempts to open plea bargaining are inadmissible. Id. at 1139. In Friedman, the court used the Robertson analysis and determined that the accused’s unsolicited offer to enter into negotiations was not admissible because it was a plea-related discussion. 38 Ill.Dec. at 147, 403 N.E.2d at 235. That court also did not discuss reliance or inducement when determining that statements made in plea-related discussions evincing a defendant’s willingness to enter a plea in return for concessions are inadmissible. Id.
United States v. Smith, 525 F.2d 1017 (10th Cir.1975), also relied on by Anderson, is distinguishable from the facts of this case. There, the defendant’s statements were made during an interview that was set up explicitly to give the defendant an opportunity to plea bargain. The defendant previously had refused to talk to officers about the crime, relenting only when all involved understood that plea bargaining was the goal of the interview. The statements were held inadmissible, and the conviction was reversed and remanded on this issue. Id. at 1022.
The other cases relied on by Anderson are distinguishable in various ways. See Dawson v. State, 585 So.2d 443, 444 (Fla.Dist.Ct.App.1991) (offer to plea made during formal plea negotiations); Clark v. State, 452 So.2d 1002, 1004 (Fla.Dist.Ct.App.1984) (defendant questioned under oath by state’s attorney at a change of plea hearing); Landrum v. State, 430 So.2d 549, 550 (Fla.Dist.Ct.App.1983) (contested statements made in connection with a previously tendered plea of guilty that was withdrawn); State v. Fox, 70 Haw. 46, 760 P.2d 670 (1988) (statements made by defense counsel to prosecutor regarding defendant’s rejection of plea agreement); People v. Hill, 78 Ill.2d 465, 36 Ill.Dec. 676, 401 N.E.2d 517 (1980) (defendant gave statement to deputy who said he had authority to negotiate a plea bargain); People v. Oliver, 111 Mich.App. 734, 314 N.W.2d 740 (1981) (officer characterized conversation as plea bargain negotiations, induced defendant to talk with the promise that he always tried to help cooperative people); People v. Smith, 94 Misc.2d 384, 404 N.Y.S.2d 947 (Sup.Ct.1978) (previously-tendered plea .of guilty withdrawn).
Application of rule to facts of this case. Anderson did not make his offer to confess during formal plea negotiations or as a result of other inducement by the officers. There is no evidence from which to infer Anderson was aware of a rule of inadmissibility of offers to plead or confess. The court found that his offer to make a deal was made voluntarily and after he had been given his *605 Miranda warnings. He made many other statements to officers that were even more damaging to his defense without claiming that any of them were made in reliance on their inadmissibility. The trial court did not err in admitting Officer Olson’s testimony.
Disposition of other claims of error. —It was not reversible error to refuse to instruct on larceny. Anderson next claims that because there was sufficient evidence to support an instruction on larceny, it was reversible error to fail to so instruct. He argues, in effect, that if the jury had determined that Anderson did not commit the murder but did take the money, that Anderson should only have been convicted of larceny and not robbery. It is possible, under Anderson’s theory, that the jury could have had a reasonable doubt regarding whether Anderson murdered the victim and yet believed that Anderson took the money from the unattended register after the murder.
For a defendant to be entitled to an instruction for a lesser included offense “there must be evidence tending to establish the lesser offense” and “there must be some view of the evidence which could sustain a finding that the lesser offense was the highest degree of the crime committed.” State v. Escamilla, 107 N.M. 510, 512, 760 P.2d 1276, 1278 (1988) (quoting State v. Hernandez, 104 N.M. 268, 276, 720 P.2d 303, 311 (Ct.App.), cert. denied, 104 N.M. 201, 718 P.2d 1349 (1986)). In this case, there is evidence that Anderson did more than just take the money — for example, his confession to Sosa was that he had killed a kid, not that he had stolen money from a gas station; the attempt to make a deal concerned his willingness to confess to the murder, not to confess to larceny; there was no evidence that he had been at the crime scene only after the murder. The only evidence which Anderson argues would support the larceny instruction is that the murder took place between 1:00 p.m. and 3:00 p.m. and that police did not secure the scene until after 4:39 p.m. However, the possibility that larceny could have occurred during that time period is not evidence that it did.
In any event, failure to give a lesser included offense instruction is not necessarily reversible error. Id. In Escamilla, even though an aggravated battery instruction could have been supported by the evidence (the defendant there claimed that his highest degree of intent was only to injure the victim), the failure to instruct was harmless error because the jury found that the defendant had a deliberate intent to take the life of the victim (which supported the conviction of attempted first-degree murder), not that he simply had knowledge that his acts created a strong probability of great bodily harm (intent required for lesser included offense of attempted second-degree murder). Because attempted second-degree murder was a higher offense than aggravated battery and the jury found a level of intent commensurate with an even greater offense, it was harmless error to refuse to instruct on the lesser included offense.
To apply the Escamilla reasoning to this set of facts, the jury here found that Anderson committed the murder. Any taking of money related to the murder constituted robbery. Therefore, the jury found that the elements required for a robbery conviction were met and it was harmless error to refuse to instruct on larceny. Only if the jury had acquitted Anderson of murder and convicted him of robbery could it have been reversible error to fail to give a larceny charge.
—Not reversible error to admit census data. There was forensic evidence that the murder had been committed by an African-American. Anderson claims that the court erred in admitting into evidence a census report showing that the population of African-Americans in Santa Fe is only .6% of the general population. The State argues that the relevance of the data was that because the African-American population of Santa Fe is so low, it was less likely that the murder victim came in contact with an African-American other than Anderson on the day of his murder. We can see some marginal relevance, and because Anderson has not shown the report to be more prejudicial than probative, admission of the data was not an abuse of the court’s discretion. See State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991) (holding trial court is vested *606with great discretion in applying Rule 403 and will not be reversed absent an abuse of that discretion).
—There is sufficient evidence to support the verdict. Anderson’s final claim is that there was insufficient evidence to support the verdict of robbery, arguing that the only evidence to link Anderson to the robbery was that he had money on the afternoon of the crime. Anderson argues that the State did not provide evidence that he did not have money earlier in the day. We do not understand this contention. Detective Trujillo testified that Anderson himself told him he had no money the morning of the robbery and murder. Robinson testified that she assumed Anderson had no money earlier in the day because they were out of cigarettes. Sosa testified that she didn’t know if Anderson had money the morning before the crime, but that none of them worked during the week they were in Santa Fe. The hotel manager testified that the Salvation Army paid for Anderson’s first two nights at the motel and Anderson paid for two days with cash after the crime and worked in return for rent for two other days. There was testimony that Anderson immediately bought liquor shortly after the crime was committed, even though he had purchased none while at a liquor store earlier in the afternoon. The jury could have determined from the above evidence that Anderson had no money before the time of the crime. The State provided evidence of all other elements of both crimes, even though, apart from Anderson’s alleged confession to Sosa and his offer to confess, it was all circumstantial. We “must view the evidence in the light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict.” State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Under this standard, the verdict was supported by sufficient evidence.
We affirm the convictions.
IT IS SO ORDERED.
BACA and FROST, JJ., concur.
MONTGOMERY, J., dissenting.
FRANCHINI, J., concurring in dissent.