(dissenting) — Anton Barker was convicted at trial of a third strike offense. He argues on appeal, as he did before the trial court, that the evidence presented at trial did not support the State’s “lesser included”4 instruction on robbery in the second degree. He steadfastly maintains that the evidence supports only a first degree robbery instruction. While I agree that the resolution of this case is controlled by our Supreme Court’s recent decision in State v. Fernandez-Medina, 141 Wn.2d 448, 6 P.3d 1150 (2000), I disagree with the majority’s application of the law to the facts of this case. For that reason, I respectfully dissent.
The issue in Fernandez-Medina was whether the factual prong of the test to determine whether the trial court should give a lesser degree instruction was met. The court held that a lesser degree instruction is warranted when: (1) the statutes for the greater and lesser offenses proscribe the same offense; (2) the charged offense divides crimes into degrees and the proposed lesser offense is a lesser degree of *907the charged offense; and (3) there is evidence that the defendant committed only the lesser offense. Id. at 454.
The first two prongs are easily met under the facts of this case since robbery is the proscribed offense and Mr. Barker was charged with first degree robbery, a crime that necessarily includes the lesser crime of second degree robbery. State v. Netling, 46 Wn. App. 461, 464, 731 P.2d 11 (1987). However, when determining whether a party has satisfied the third (factual) prong of this test, the court must look at the evidence in the light most favorable to the party requesting the instruction, in this case the State. Fernandez-Medina, 141 Wn.2d at 455-56. To satisfy the factual prong of the Fernandez-Medina test there must be particularized, affirmative evidence that would allow a rational juror to find that the defendant committed the lesser degree offense to the exclusion of the charged offense. Id. at 455. This is a more definite display than a court generally requires prior to giving a particular jury instruction. Id. Before making its determination regarding jury instructions, the court must look at all of the evidence presented. It is not sufficient reason to give the lesser degree instruction just because the jury may disbelieve the State’s evidence, which, as here, suggests that the defendant committed the greater degree offense. Id. at 456. It is this final step in the analysis with which I disagree with the majority’s analysis.
Mr. Barker alleges that the State failed to meet the requirements of the factual prong of the Fernandez-Medina test, and thus erroneously gave the lesser degree instruction. I agree. Here, the “to convict” instruction5 for second *908degree robbery does not contain any sort of weapon element. Nor was evidence presented at trial that would satisfy only the elements of second degree robbery, i.e., that Mr. Barker unlawfully took personal property in the victim’s presence against her will by the use or threatened use of force or fear of injury, but that no weapon was displayed. In order to obtain a conviction for first degree robbery, the State had to prove that Mr. Barker displayed what appeared to be a firearm or other deadly weapon during the commission of the crime. I would hold that the State did so under the facts of this case.
Although argued otherwise in the briefing, a mere verbal statement that one is armed with a weapon does not constitute the display of a deadly weapon. Used in a statutory context, the term display requires some physical manifestation beyond a mere verbal threat of harm with a deadly weapon. In re Personal Restraint of Bratz, 101 Wn. App. 662, 674-76, 5 P.3d 759, mot. for discretionary review denied, No. 70137-7 (Wash. Dec. 5, 2000). Accordingly, the State had to present evidence that the alleged robber committed a menacing physical act beyond his verbal indication that he was armed, in order to fall within the parameter of the first degree robbery statute. The only evidence presented at trial, with regard to the description of the actual robbery, affirmatively showed that a weapon was displayed during the alleged robbery.
Although the victim testified that she did not see a gun, the alleged robber told her he had a gun and said he would shoot her if she did not cooperate. She also testified that something hard was shoved into her back as she tried to open the cash register. Officer Perry Skipton, a 20-year veteran of the Yakima Police Department, was the first law enforcement official on the scene of the reported robbery. He began to interview the victim within minutes of the crime. *909He testified that the victim was frightened, upset, and trembling as he interviewed her. She told him that a man came into the store, said he had a gun, and said he wanted the money. She told the officer that she did not see the gun but while she took the money out of the cash register she could feel something pointing into her back. Another of the State’s witnesses, Raul Abundiz, testified that Mr. Barker admitted that he had committed the shoe store robbery. Mr. Abundiz also told the jury that Mr. Barker said that he did not really have a weapon during the robbery, but admitted that he put his finger under his shirt so the clerk would believe that he had a gun. When, as here, the victim’s subjective belief is accompanied by an objective physical manifestation that the robber appears to be displaying a deadly weapon, it is sufficient evidence to establish that necessary element of robbery in the first degree. Id. at 674. As a result, the State failed to satisfy the factual prong of the Fernandez-Medina test regarding the elements of second degree robbery. For this reason it was an abuse of the trial court’s discretion to instruct the jury on the lesser degree offense.
Because this issue is dispositive to the outcome of the appeal, I would reverse and remand for a new trial without reaching the merits of Mr. Barker’s other assignments of error. It is important to note that due to double jeopardy concerns, Mr. Barker cannot be retried on charges greater than the charge for which he was convicted here. However, in a strange twist of circumstances, he may be retried on the offense for which he was already convicted, as long as the reversal was not for insufficiency of the evidence. State v. Brown, 127 Wn.2d 749, 756-57,903 P.2d 459 (1995). Since I would reverse and remand based on the erroneous jury instruction, this principle is not violated.
Review denied at 143 Wn.2d 1021 (2001).
There is a distinction between lesser included and lesser degree instructions and each requires a different analysis. State v. Fernandez-Medina, 141 Wn.2d 448, 453-54, 6 P.3d 1150 (2000). Second degree robbery is a lesser degree of first degree robbery, which was charged in the information. The lesser degree term and analysis will be utilized here.
Instruction No. 13 provides in part:
“To convict the defendant, Anton Barker, of the crime of Robbery in the Second Degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
“(1) That on or about the 1st day of April, 1999, the defendant unlawfully took personal property of another from the person or in the presence of another;
“(2) That the defendant intended to commit theft of the property;
“(3) That the taking was against that person’s will by the defendant’s use or threatened use of immediate force, violence or fear of injury to that person;
*908“(4) That force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking; and
“(5) That the acts occurred in The State of Washington.”