¶30 (dissenting) — I agree with the majority that insufficient evidence supports Gonzalo Garcia Jr.’s conviction for third degree assault. I also agree that under certain circumstances when we reverse a conviction for insufficient evidence, we have the power to remand for entry of judgment and sentence on a lesser included offense, *832but this is not such a case.2 Therefore, I respectfully dissent.
¶31 Citing State v. Gilbert, 68 Wn. App. 379, 385, 842 P.2d 1029 (1993), the majority points out that in Washington an appellate court “will direct a trial court to enter judgment on a lesser degree of the offense charged when the lesser degree was necessarily proved at trial.” Majority at 830. Noting RAP 12.2 is a source of this power, the Gilbert court remanded for entry of judgment and sentence for residential burglary after vacating a first degree burglary conviction for insufficient evidence. Gilbert, 68 Wn. App. at 384, 388.
¶32 RAP 12.2 provides that this court “may reverse, affirm, or modify the decision being reviewed and take any other action as the merits of the case and the interest of justice may require.” Despite its reference to this rule, the Gilbert court did not explain how a sentencing remand served the interest of justice or provide any guidelines for application of the rule. Similarly here, the majority appears to assume that a sentencing remand serves the interest of justice but fails to explain how this is so. Such cursory exercise of our sentencing remand power is improper.
¶33 RAP 12.2 should be used with care and only when the ends of justice merit it. We have interpreted this rule to mean that an appellate court may “take any action required by the merits of the case and the interests of justice.” State v. Diana, 24 Wn. App. 908, 913, 604 P.2d 1312 (1979) (emphasis added). In Diana, we articulated how justice was served when we considered an argument on appeal that the defendant failed to raise at trial. Id. But what are the demands of justice here?
¶34 First, I am troubled by this court’s exercise of its sentencing remand power when the State failed to request such disposition on appeal. Generally, we follow the rule that the parties present the issues on appeal. RAP 10.3(g) provides that “[t]he appellate court will only review a *833claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto.” Further, RAP 12.1(a) provides that generally “the appellate court will decide a case only on the basis of issues set forth by the parties in their briefs.” These rules support the principle that appellate courts serve as neutral arbiters of matters the parties present and should generally refrain from granting relief that was not requested on appeal.
¶35 Although I could find no Washington case on point, other jurisdictions, both federal and state, require the state to request a sentencing remand before the appellate court will consider doing so. For example, in United States v. Dinkane, 17 F.3d 1192, 1198 (9th Cir. 1994), this requirement is part of a three-part test that must be met before an appellate court may order a sentencing remand. In United States v. Grey Bear, 836 F.2d 1086, 1087-88 (8th Cir. 1987), the court stated that the government waives a lesser included offense issue on appeal by failing to raise it in the district court or in its opening appellate brief. South Carolina also requires that the government request a sentencing remand as a prerequisite to an appellate court considering the option. State v. Brown, 360 S.C. 581, 594, 597, 602 S.E.2d 392 (2004).
¶36 A recent United States Supreme Court case aptly states the rationale for the party presentation rule. In Greenlaw v. United States, __ U.S. _, 128 S. Ct. 2559, 171 L. Ed. 2d 399 (2008), the Eighth Circuit had added 15 years to the appellant’s sentence, United States v. Carter, 481 F.3d 601 (2007), deciding without government invitation or argument that the law required a longer sentence. The State argued that under 28 U.S.C. § 2106,3 which is nearly identical to RAP 12.2, the court had the power to increase the sentence on its own initiative. The Supreme Court disagreed, ultimately holding that absent a *834government appeal or cross appeal, the Eighth Circuit could not, on its own initiative, increase the defendant’s sentence. Greenlaw, 128 S. Ct. at 2564. Justice Ginsberg, writing for the majority, reasoned,
In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present. To the extent courts have approved departures from the party presentation principle in criminal cases, the justification has usually been to protect a pro se litigant’s rights.
Id.
¶37 She also wrote, “ ‘[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties. Counsel almost always know a great deal more about their cases than we do.’ ” Id. (alteration in original) (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987)). Based on the foregoing principles, a sua sponte sentencing remand is improper.
¶38 Second, a sentencing remand effectively rescues the State from a failed trial strategy. At trial, the State chose to proceed on the sole charge of third degree assault, declining to give the judge the option of convicting Mr. Garcia of fourth degree assault. In doing so, it hoped that the judge would convict on the greater offense. However, its failure to give the court the option of convicting Mr. Garcia of the lesser offense increased the risk of an unwarranted conviction. See Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973) (“Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” (emphasis added)). Indeed, on appeal, we concluded that the State did not prove all of the elements of third degree assault.
¶39 Washington cases permit appellate courts to order sentencing remands even when the fact finder has not been *835explicitly instructed on the lesser included offense as long as it is clear that the fact finder necessarily found each element of the lesser included offense in reaching its verdict. See Gilbert, 68 Wn. App. at 385; State v. Brown, 50 Wn. App. 873, 878, 751 P.2d 331 (1988). Applying this rule, the majority justifies a sentencing remand because the trial court’s findings “necessarily constitute a finding of every element of fourth degree assault.” Majority at 830.
¶40 However, this finding leads to my third objection. As an appellate court, we do not sit as fact finders; it is improper for us to substitute our judgment of guilt for that of the trial judge or jury. There is a “crucial distinction between an appellate court finding evidence in the record sufficient to support a jury verdict and a jury finding the evidence sufficient to prove guilt beyond a reasonable doubt.” State v. Myers, 158 Wis. 2d 356, 366-67, 461 N.W.2d 777 (1990).
¶41 My objection is reinforced by the fact that Mr. Garcia was not allowed to defend himself against a fourth degree assault charge. Because he was not charged with fourth degree assault, Mr. Garcia may have forgone a particular defense or strategy at trial. The record shows that his only argument at trial was that he was not guilty of third degree assault because his detention by Antonio Moran was not lawful. I can only speculate as to other strategies or defenses Mr. Garcia might have employed had he been charged in the alternative with fourth degree assault. Mr. Garcia formulated a specific trial strategy based on the sole charge of third degree assault. It is therefore improper for us to find him guilty of fourth degree assault in the absence of his right to defend against that charge.
¶42 Finally, Mr. Garcia is serving a 50-month sentence for a crime he did not commit. In view of this injustice, a sentencing remand serves no purpose except to undermine the public’s faith that we are neutral arbiters of justice.
¶43 For all of these reasons, it is highly improper for this court, on its own initiative, to remand for entry of judgment and sentence for fourth degree assault. The exercise of our *836sentencing remand powers should be used in a principled way and only when the ends of justice demand that it be done. This standard is not met here. Therefore, I would simply reverse and dismiss Mr. Garcia’s third degree assault conviction.
Review denied at 166 Wn.2d 1009 (2009).
I refer to this option as a “sentencing remand.’
28 U.S.C. § 2106 reads, “The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment . . . lawfully brought to it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.”