¶31 (dissenting) — I respectfully dissent. Because the evidence supports giving the inferior third degree rape instruction, I disagree with the majority’s holding that the trial court abused its discretion and committed reversible error in giving this instruction over Harold Wright, Jr., and Richy Carter’s objection. I would affirm.
I. Standard of Review
¶32 I agree with the majority that a trial court may not submit a theory to the jury for which there is insufficient evidence. State v. Munden, 81 Wn. App. 192, 195, 913 P.2d 421 (1996). We review the evidence in the light most favorable to the proponent of the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). When a trial court’s decision to give an instruction rests on a factual determination, we review the decision for abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Jensen, 149 Wn. App. 393, 399, 203 P.3d 393 (2009). In my view, Wright and Carter fail to meet this burden here.
II. No Abuse of Trial Court Discretion
¶33 The majority cites State v. Charles, 126 Wn.2d 353, 894 P.2d 558 (1995) and State v. Ieremia, 78 Wn. App. 746, 749-50, 899 P.2d 16 (1995), review denied, 128 Wn.2d 1009 (1996), for the following proposition:
The trial court may not instruct on third degree rape as an inferior degree offense to second degree rape when the defen*76dant contends that the intercourse was consensual and the victim testifies that the intercourse was forced.
Majority at 71-72. In my view, the law does not support this proposition where the truth, as viewed by the jury, may lie somewhere between the extremes of the defendant’s and the victim’s seemingly mutually exclusive testimonies. In spite of the majority’s characterization to the contrary, I agree with the State that “the jury could find lack of consent without force” based on the record before us. Id. at 70.
A. Fernandez-Medina
¶34 Our Supreme Court has rejected2 the absolute proposition that the majority posits here. Id. at 71. In Fernandez-Medina, the State charged the defendant with first degree assault. Fernandez-Medina, 141 Wn.2d at 451. At trial, the defendant claimed that he had not been present at the victim’s location at the time of the alleged assault; he also requested an inferior degree jury instruction on second degree assault. Id. at 451-52. The trial court denied the defendant’s request for the inferior degree instruction. Id. at 452. On appeal, the State argued that because the defendant had presented an alibi defense at trial, denying that he had assaulted the victim in any *77degree, he was not entitled to an instruction on an inferior degree offense. Id.
¶35 Rejecting the State’s argument, our Supreme Court stated that such a proposition
would empower trial courts to deny a request for an instruction on the basis that the theory underlying the instruction is “inconsistent” with another theory that finds support in the evidence. This would require the judge presiding at a jury trial to weigh and evaluate evidence, and would run afoul of the well-supported principle that “[a]n essential function of the fact finder is to discount theories which it determines unreasonable because the finder of fact is the sole and exclusive judge of the evidence, the weight to be given thereto, and the credibility of witnesses.”
Id. at 460 (alteration in original) (quoting State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999)). Accordingly, the Supreme Court held that an inferior degree offense instruction is warranted when substantial evidence in the record raises an inference that only the lesser included or inferior degree offense was committed, even if this lesser included or inferior degree offense is inconsistent with another theory of the case proposed by the party requesting the instruction. Id. at 460-61. Such is the case here.
B. Charles and Ieremia
¶36 Consistent with Fernandez-Medina, neither Charles nor Ieremia stands for the majority’s absolute proposition that a party’s inconsistent theories of a case warrant automatic denial of a request for a lesser degree jury instruction. The State charged Charles with second degree, forcible rape. Charles, 126 Wn.2d at 354. The victim testified that Charles forced her to the ground, they struggled, and Charles forced her to have sexual intercourse with him. Id. Charles testified that he and the victim had consensual intercourse. Id. at 355. There was no evidence that the sexual intercourse was nonconsensual but not *78forcible. Nevertheless, Charles’ defense counsel requested an instruction on the lesser third degree rape. Id.
¶37 The Supreme Court upheld the trial court’s refusal to give the lesser offense instruction because (1) there was no affirmative evidence that the intercourse was unforced but still nonconsensual; and (2) as a result, the jury would have had to disbelieve both Charles’ claim of consent and the victim’s testimony that the act was forcible. Charles, 126 Wn.2d at 356, cited in majority at 72). It was this lack of evidence of third degree rape and this lesser offense’s absolute inconsistency with both the victim’s and the defendant’s testimonies on which the court based its holding.
¶38 Similarly, in Ieremia, a consolidated case, the first victim testified that Singh grabbed her by the arms, carried her to a bedroom, took off her clothes, raped her, and covered her mouth with his hand when she cried out for him to stop and protested repeatedly that she wanted to go home. Ieremia, 78 Wn. App. at 749. She further attempted to resist by slapping Singh. Id. A physician who had examined the victim immediately after the rape testified that the victim’s pelvic area had been traumatized, her vaginal area was torn, and she had multiple bruises and abrasions on her arms, back, breasts, and other parts of her body. Id.
¶39 The second victim testified that the other defendant, Ieremia, grabbed her wrists and pulled her to his car. Id. at 749-50. She protested and tried to pull away, but she did not scream or call for help. Id. at 749. Ieremia drove her to a nearby park, pulled her hair, covered her mouth to muffle her screams, overcame her struggles, and raped her. Id. at 749-50.
¶40 Both Singh and Ieremia claimed that the intercourse in each case was consensual. Id. In affirming the trial court’s denial of a third degree rape instruction in both cases, Division One of our court did not base its holding entirely on the victims’ having testified only that the rapes were forcible (second degree rape) and the defendants’ having testified solely that the sexual intercourses were *79consensual. Rather, the court discussed Charles, noted that there was “no other testimony”3 supporting an inference of third degree rape for the jury to consider, id. at 755, and concluded that “[a]s in Charles, there was no affirmative evidence that the intercourse was unforced but still nonconsensual” and, therefore, the defendants were not entitled to a third degree rape instruction. Id. at 756 (emphasis added).
¶41 In short, neither Charles nor Ieremia4 warranted a lesser third degree rape instruction because both cases lacked affirmative evidence supporting the inference that only unforced but nonconsensual intercourse occurred. Furthermore, Fernandez-Medina is both closer factually and 10 years more recent than Charles and Ieremia. In my view, therefore, Fernandez-Medina provides controlling authority: Fernandez-Medina would have compelled reversal if the trial court here had refused to give the third degree rape instruction; but because the trial court exercised its discretion and gave the instruction, Fernandez-Medina requires affirmance. See Fernandez-Medina, 141 Wn.2d at 462 (When substantial evidence in the record affirmatively raises the inference that the defendant is guilty of only a lesser degree offense, the trial court should instruct on that lesser offense.). The same rule applies to an inferior degree offense instruction. Id. at 456.
*80C. Evidence Warranted Inferior Degree Instruction Here
¶42 In contrast with Charles and Ieremia, supporting evidence here warranted the trial court’s giving an inferior degree offense instruction. Describing the physical circumstances of the rape, SF testified that someone pulled her into the room and onto the bed where the rape occurred, but she did not yell or shout for help. Although SF testified that someone had held down her left shoulder to keep her down on the bed, she also stated that the experience felt like someone was leaning over her and that only the weight of the individual held her down. She further testified that defendants Wright and Carter did not hold her down in a painful manner, she told them to “stop,” but she did not scream or yell out, and at first, she did not remember trying to push anyone off her.5 Particularly noteworthy was SF’s testimony that she did not like to use the word “rape” to describe what happened to her because that was a “strong word,” but that the sexual intercourse was nonconsensual. Consistent with SF’s testimony, the nurse who had conducted SF’s postrape examination testified that she saw no injuries or bruising, SF did not report being in any pain, and the examination’s findings were consistent with consensual intercourse.6 Thus, the evidence was ambiguous about the degree of force, if any, the defendants used to consummate the nonconsensual sexual intercourse with SF.
*81¶43 The evidence could support several inferences. The physical contact SF described could be consistent with consensual, nonconsensual, or forcibly compelled sexual intercourse. Her description of the rape does not necessarily indicate any use of force greater than the force normally required to achieve penetration. See State v. McKnight, 54 Wn. App. 521, 528, 774 P.2d 532 (1989). Viewed as a whole and in a light most favorable to the State’s proposed instruction, the evidence and testimony supports a reasonable inference that the sexual intercourse was not forcibly compelled, but was still nonconsensual. Thus, a rational trier of fact could have believed SF’s testimony and reached a conclusion that only third degree rape was committed.
¶44 This is what the jury did here. Given a choice between convicting Wright and Carter of second and third degree rape, the jury left blank the second degree rape verdict form and instead found the evidence sufficient to convict the defendants of the inferior third degree rape. Therefore, the trial court’s exercise of its considerable discretion in giving a third degree rape instruction under these extremely close facts was not “manifestly unreasonable or based on untenable grounds.” I strongly, but respectfully, disagree with the majority’s decision to the contrary. Accordingly, I dissent from the majority’s reversal of Wright and Carter’s third degree rape convictions on grounds of abuse of discretion.7 I would affirm.
Review denied at 168 Wn.2d 1017 (2010).
I further note that Division One of our court has also implicitly rejected the proposition posited by the majority here. Ierenda, 78 Wn. App. at 757. In State v. Gostol, Division One also noted that a lesser included offense instruction analysis does not necessarily turn on
the argument or theory advanced by the party who asks for a lesser included offense instruction. Rather, it turns on whether evidence is presented by either party from which the necessary inference may be drawn. A defendant may argue for acquittal and yet also be entitled to an instruction on a lesser included offense.
92 Wn. App. 832, 838, 965 P.2d 1121 (1998) (footnote omitted).
I agree with the majority that only the factual prong of the Workman test, whether the facts warrant an inferior degree instruction, is at issue here. Majority at 71 n.1; see State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). Under Workman’s factual prong, the analyses for determining the propriety of giving lesser included and inferior degree instructions are identical. See Fernandez-Medina, 141 Wn.2d at 454-55. Therefore, the above quoted language from Gostol, also involving the factual prong of the Workman test, applies with equal persuasiveness here.
Division One’s recent decision in State v. Buzzell, 148 Wn. App. 592, 200 P.3d 287 (2009), continues to follow this rationale. Buzzell testified that the sexual intercourse was consensual; the victim testified that the sexual intercourse was forcibly compelled. Id. at 601. The court noted that (1) “[according to the testimony, the sexual contact was either through forcible compulsion or it was consensual”; and (2) “|l]ike Charles, the evidence supported that Buzzell either used forcible compulsion or that [the victim] consented to the sexual contact” and upheld the trial court’s refusal to give a jury instruction on third degree rape. Id. at 604-05 (emphasis added).
Furthermore, Charles end Ieremia do not present the same procedural posture as does the case before us: Affirming a trial court’s refusal to give a lesser included offense instruction, as the courts did in Charles and Ieremia, is not analogous to the majority’s reversal here based on the trial court’s giving an inferior degree offense instruction. Charles and Ieremia affirmed the trial court’s exercise of discretion. I would do the same here.
After she refreshed her recollection by reading a statement she had made a few days after the rape, she recalled unsuccessfully having tried to push her assailants off.
I acknowledge that, in Ieremia, Division One reasoned that the second victim’s lack of physical injury and failure to struggle or yell tended to support only Ieremia’s claim of consent, not an inference of lack of consent. Ieremia, 78 Wn. App. at 756. As I have already noted, however, Ieremia lacked any other testimony or affirmative evidence supporting an inference that the sexual intercourse was nonconsensual but not forcibly compelled. Unlike Ieremia, the victim’s own testimony here supports third degree rape and arguably even consensual sexual intercourse, as well as second degree rape. Thus, viewing all evidence together, a rational trier of fact could find that the sexual intercourse was forcible, nonforcibly nonconsensual, or consensual.
For purposes of clarification, I note that (1) the majority reverses based on insufficiency of evidence supporting the giving of an instruction on third degree rape, as opposed to insufficiency of evidence supporting the jury’s convictions for third degree rape; and (2) the majority properly declines to address others issues the defendants raise on appeal, including their challenge to the sufficiency of the evidence supporting their convictions. In my view, the majority thereby implicitly recognizes that the State is not precluded from recharging and retrying Wright and Carter for third degree rape on remand. At a retrial, the State should be able to adduce other facts supporting a third degree rape instruction, which the trial court will need to evaluate anew to determine the appropriate “to convict” jury instructions. We cannot prejudge such evidence now.