(dissenting) — The majority’s decision further blurs the distinction between inferior degree crimes and lesser included crimes — a distinction the majority acknowledges and laments is already badly confused in the case law. The following table summarizes and contrasts the rules concerning inferior degree and lesser included crimes:
Inferior Degree Crime Lesser Included Crime
RCW 10.61.003 RCW 10.61.006
Defendant may be found not guilty of charged offense and guilty of any degree inferior thereto. Defendant may be found guilty of an offense, the commission of which is necessarily included within the charged offense.
An offense is of an inferior degree when: An offense is a lesser included offense if:
1. The statutes for both the charged offense and the proposed inferior degree offense “proscribe but one offense.” 1. Each of the elements of the lesser offense must be a necessary element of the offense charged. (The legal prong)
*4632. The information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense. 2. The evidence in the case supports an inference that the lesser crime was committed. (The factual prong) State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978).
3. There is evidence that the defendant committed only the inferior offense. State v. Peterson, 133 Wn.2d 885, 948 P.2d 381 (1997). Test: If it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime. State v. Bishop, 90 Wn.2d 185, 580 P.2d 259 (1978).
Whereas both the inferior degree offense and the lesser included offense require evidence to support an inference that the inferior or lesser offense was committed, the inferior degree also requires evidence supporting an inference that only the inferior crime was committed. Several cases have improperly imputed the “only” requirement when discussing lesser included offenses. These cases may still have been properly decided based on other factors, but the analysis was flawed. For example, State v. Bower, 28 Wn. App. 704, 709, 626 P.2d 39 (1981), concludes that there must be evidence supporting an inference that only the lesser crime was committed. The authority cited is State v. Bishop, 90 Wn.2d 185, 191, 580 P.2d 259 (1978). However, the proposition stated in Bishop is that the lesser could not be given because the greater crime could be committed without also committing the lesser. That proposition has been frequently confused in the cases with a requirement that the evidence support an inference that only the lesser crime was committed. In fact, they are separate concepts.
Bower also cites State v. Donofrio, 141 Wash. 132, 250 P. 951 (1926). This case is inapplicable because it was not a lesser included case. Rather, it was an inferior degree case *464which does require evidence supporting an inference that only the inferior crime was committed. In addition, Bower cites State v. Livengood, 14 Wn. App. 203, 540 P.2d 480 (1975). In Livengood, a lesser included offense was unjustified because “[t]here was no evidence on which a finding could be made on the lesser included offense.” 14 Wn. App. at 206 (emphasis added). Furthermore, the defendant had failed to request the lesser included offense at trial.
State v. Partosa, 41 Wn. App. 266, 703 P.2d 1070 (1985), falls into the same error, citing Bower and State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). However, nowhere in its discussion of the requirements for a lesser included offense does Workman use the word “only.” 90 Wn.2d at 448. Partosa also cites State v. Putnam, 31 Wn. App. 156, 639 P.2d 858 (1982). In fact, Putnam does not include the “only” requirement. Rather, it finds no lesser included offense appropriate because the greater crime can be committed without also committing the lesser crime.
State v. Peters, 47 Wn. App. 854, 860, 737 P.2d 693 (1987), also mistakenly relies on Putnam. In addition, Peters cites State v. Cozza, 19 Wn. App. 623, 576 P.2d 1336 (1978). In Cozza, the court refused an instruction because there was no evidentiary basis on which to ground the lesser included offense. Again, the word “only” does not appear in the discussion. Finally, Peters cites to State v. Snider, 70 Wn.2d 326, 422 P.2d 816 (1967). Again, the lesser was rejected in Snider because there was no “basis in the evidence produced at trial positively inferring that the lesser crime was committed . .. .” 70 Wn.2d at 327
State v. Rodriguez, 48 Wn. App. 815, 818, 740 P.2d 904 (1987), also improperly relies on Peters, Putnam, and Donofrio.
In contrast to the cases that have confused the concepts of inferior degree crimes and lesser included crimes, State v. Peterson, 133 Wn.2d 885, 948 P.2d 381 (1997), and State v. Tamalini, 134 Wn.2d 725, 953 P.2d 450 (1998), discuss both concepts clearly. In Tamalini, the defendant requested first and second degree manslaughter as both a lesser included *465offense and/or an inferior degree offense. The lesser included offenses were rejected because the specific mental elements differed between the lesser included offenses requested and the crime charged. The inferior degree offenses were rejected because “the manslaughter statutes and the felony murder statutes proscribe significantly different conduct and thus define separate and distinct crimes.” 134 Wn.2d at 732.
Examining the facts of the instant case in light of the appropriate inferior degree crime analysis, I cannot concur with the majority holding that there is evidence which supports an inference that only the inferior degree crime was committed.
In State v. Ieremia, 78 Wn. App. 746, 899 P.2d 16 (1995), the court considered whether the defendant was entitled to a third degree rape instruction as an inferior degree crime of second degree rape. In rejecting the inferior degree, the court stated: “It is not sufficient that the jury might simply disbelieve the State’s evidence supporting the charged crime. Rather, the evidence must support an inference that the defendant committed the lesser offense instead of the greater one.” 78 Wn. App. at 755 (citations omitted).
The current majority states: “[A] requested jury instruction on a lesser included or inferior degree offense should be administered ‘[i]f the evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater.’ ” Majority at 456 (quoting State v. Warden, 133 Wn. 2d 559, 563, 947 P.2d 708 (1997)). The problem with this assertion is that it confuses the rule for lesser offense, which was at issue in Warden, with inferior degree, at issue here. As pointed out above, however, a lesser degree case requires the defendant to produce evidence which supports an inference that only the lesser degree crime was committed.
The majority asserts that “the distinction between lesser included and inferior degree offense instructions is not, however, significant in this case.” Majority at 454-55. The majority then claims, wholly without authority, that “the *466test for determining if a party is entitled to an instruction on an inferior degree offense differs from the test for entitlement to an instruction on a lesser included offense only with respect to the legal component of the test.” Id. at 455. This is flat wrong. It is the factual prong which most distinguishes the lesser included from the inferior degree as there must be evidence that infers only the inferior degree crime was committed.
The jury heard evidence that the defendant had threatened to kill his former girl friend, Ann Carpenter, and her friends on the very day of the shootings. Report of Proceedings (RP) at 143, 148. Later that day, a person identified as the defendant, Fernandez-Medina, kicked in the door to where Carpenter was with friends and shot Wayne Butler, who was at the door. RP at 143-54. As Butler ran toward the kitchen, he fell to the floor as the defendant shot him again, severing his spinal cord. Carpenter ran into the bathroom as soon as she saw the defendant with the gun. She saw a flash between her legs as a shot hit a metal piece of the bathroom door. RP at 154. Meanwhile, Dorothy Perkins turned and fell when she heard the shots and was lying on her back. She saw the defendant stand over her as he held the gun two feet from her head. RP at 411-13. As he pointed the gun at her head, she heard the defendant “pull the trigger,” and the gun make a “click” sound. RP at 411, 424-25, 480.
The defendant claimed entitlement to a lesser degree offense instruction of assault in the second degree as to Dorothy Perkins. The majority found evidence entitling the defendant to the lesser degree offense based upon a claim that when he pointed the gun at her head, he did not intend to inflict great bodily harm on the victim, but only intended to “put her in apprehension of harm.” The majority held that forensic evidence showed that a handgun of the type used could make a “clicking sound” without the trigger being pulled. However, at best, this is mere impeachment evidence of the victim that she heard a “click, the sound of a gun.” Whether such a handgun can make clicking sounds *467without the trigger being pulled raises no inference that the defendant did not intend to harm the victim but only intended to put her in fear.
In State v. McClam, 69 Wn. App. 885, 888, 850 P.2d 1377 (1993), cited by the majority, there was a statement by the alleged purchaser of drugs that he was sold “bunk.” The McClam court held that evidence raised an inference that the defendant was keeping the drugs in his possession for himself. However, McClam was a lesser included crime case where all that was required was evidence supporting an inference that the lesser was committed (not that only the lesser was committed). In the case before us, there were no statements from which the jury could infer the defendant’s state of mind. In fact, he testified he was elsewhere at the time of the shooting.
The trial court also refused the inferior degree offense because the defendant claimed an alibi defense, which is a complete and antithetical defense to the claim that he pointed the gun at the victim to “put her in apprehension of harm.” Had the defendant made a general denial or an inconsistent defense, such as one negating intent (e.g., diminished capacity), I would then agree that the inferior degree should be available. The discussion of State v. Hurchalla, 75 Wn. App. 417, 877 P.2d 1293 (1994), State v. McClam, and State v. McJimpson, 79 Wn. App. 164, 901 P.2d 354 (1995), is of marginal relevance since all three were lesser included offense cases.
I can agree with the majority that even in an inferior degree case, a defense which merely negates intent, such as self-defense, should not be a reason to deny an otherwise qualifying inferior degree offense. Here, however, the defendant claims a complete defense of alibi — that he was elsewhere when this crime was committed. Such a position is antithetical to the proposed inferior degree offense.
As a final point, the defendant’s proposed instruction was defective in that it proposed an alternative of “an intentional assault of another that thereby recklessly inflicts substantial bodily harm.” There was no evidence of any *468injury to Ms. Perkins and no basis for this language in the proposed instruction. The trial court had no obligation to give an instruction for which there was no evidence. I would affirm the Court of Appeals.