dissenting.
I respectfully dissent from the principal opinion’s holding that Christopher M. Sanders (hereinafter, “Mr. Sanders”) failed to proffer a properly worded lesser-included offense instruction. The principal opinion relies on State v. Hibler, 5 S.W.3d 147 (Mo. banc 1999) and State v. Collins, 154 S.W.3d 486 (Mo. App. W.D. 2005), to hold the trial court did not err in refusing Mr. Sanders’ proffered involuntary manslaughter instruction because it impermis-sibly modified the charged offense by requiring the jury to find he caused the victim’s death by kicking her as opposed to kicking and strangling her. Neither Hibler nor Collins holds that a proffered lesser-included offense instruction is improper because it hypothesizes a subset of the facts supporting the charged offense. By definition, a lesser-included offense consists of a subset of the elements necessary to convict the defendant of the offense charged. State v. Roberts, 465 S.W.3d 899, 902 (Mo. banc 2015). Mr. Sanders’ proffered involuntary manslaughter instruction was proper. Therefore, consistent with State v. Jensen, No. SC95280, 524 S.W.3d 33, 2017 WL 2952320 (Mo. banc 2017), I would hold the trial court committed reversible instructional error in failing to instruct the jury on the nested lesser-included offense of involuntary manslaughter.
The principle opinion’s reliance on Hi-bler and Collins is misplaced. Hibler and Collins both deal with due process considerations in allowing a defendant to be convicted of a lesser-included offense from the charged indictment rather than the form of the proffered lesser-included instruction. Hibler, 5 S.W.3d at 150; Collins, 154 S.W.3d at 494-95.
In Hibler, this Court reversed the trial court’s refusal to submit the defendant’s lesser-included instruction for third-degree assault to the jury. Hibler, 5 S.W.3d at 148. The Court’s analysis, much like the Court’s recent decision in State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014), focused upon the decision whether to submit a lesser-included instruction. The Hibler court set forth the framework supporting the position that there are no due process violations in permitting a lesser-included offense instruction when the' lesser-included offense stems from “the greater offense actually charged.” Hibler, 5 S.W.3d at 150 (quoting State v. Ballard, 394 S.W.2d 336, 340 (Mo. 1965)). The principal opinion then imports this general framework into its analysis to find that because the language of the proffered lesser-included instruction did not mirror the charged offense it was in an improper form and could be rejected. Hibler never speaks to the form of a proper instruction and is irrelevant in the context of the principal opinion’s analysis.
In Collins, the state’s amended information charged the defendant with first-degree assault for “knowingly caused serious *220physical injury to [the victim] by striking him with [⅞⅛] hands or feet.” Id. at 494. The trial court also instructed the jury according to the state’s proffered ■instruc-’ tion for the lesser-included offense of third-degree assault. This instruction required the jury to determine whether the defendant “knowingly caused physical contact with [the victim] by poking him with his finger....” Id. The jury found the defendant guilty of third-degree assault. Id. at 490. Collins held, as a matter of due process, that “a criminal defendant may not be convicted of an offense not expressly charged in the information or indictment.” Id. at 494 (citing Hibler, 6 S.W.3d at 150 and State v. Smith, 592 S.W.2d 165, 165 (Mo. banc 1979)). The court found the third-degree assault instruction wás improper because it added a new factual allegation—“poking him with" his finger”— that was never alleged in the "state’s amended information. Collins simply holds that because poking with a finger is not the same conduct as striking with hands or feet, the state impermissibly submitted a separate offense to the jury. Id. at 495.
Unlike Collins, Mr. Sanders’ proffered lesser-included instruction did .not imper-missibly modify, the charged offense. The state charged Mr. Sanders with second-degree murder for knowingly causing the victim’s death by “kicking and strangulating her.” His proffered instruction would have required the jury to determine whether he recklessly caused the victim’s death by “kicking her.” By requiring .the jury to determine whether he killed the victim by “kicking” her as opposed to “kicking and strangulating” her, Mr. Sanders’ proffered instruction hypothesizes a subset of the facts underlying the charged conduct and, unlike Collins, does not hypothesize a separate offense. Mr. Sanders’ proffered instruction submitted a proper lesser-included offense because it was based on “proof of the same or less than all the facts required to establish the commission of the offense charged.... ” Section 556.046.1(1), RSMo Supp. 2014 (emphasis added).
Mr. Sanders’ proffered instruction was based on the same, but less, facts than those charged. This is in direct opposition to the jury instructions in Collins, wherein the trial court instructed the jury on facts that were not charged at all. Additionally, in Collins, the state introduced hew, uncharged facts into a jury instruction, not the defendant. Mr, Sanders’ proffered instruction comported with his theory at trial that he kicked but did not strangle the victim.1
Further, the principal opinion’s concern that a defendant may alter criminal conduct to create confusion for the jury is misplaced. An instruction that introduces a new separate offense from the one charged is not a proper lesser-included instruction and should be rejected. See Collins, 154 S.W.3d at 494-97. Here, Mr. Sanders’ instruction was based upon the charged offense and supported his theory of his culpability.
Mr. Sanders. timely submitted a proper instruction on the nested lesser-included offense of involuntary manslaughter. There is was no allegation Mr.. Sanders’ proffered instruction failed to comply with the applicable MAI. See State v. Blurton, 484 S.W.3d 758, 768-69 (Mo. banc 2016) (finding no trial court error in rejecting a proffered instruction that failed to comply with MAI). There is no legal requirement *221for a defendant to adhere to the identical language of an indictment.2 Hibler and Collins only stand for the proposition that a lesser-included offense instruction must be for a lesser-included offense of the offense charged; there may not be additional conduct alleged in the instructions which would constitute a new, separate offense.
Accordingly, I would'find the trial court erroneously rejected a proper lesser-in-cludéd instruction, I would also follow the analysis of Jensen in determining that it was prejudicial to not provide Mr. Sanders’ lesser-included instruction to the jury. I would reverse and remand this case.
. To hold that instructions may only mirror the language of the state’s information precludes a defendant from ever alleging he or she committed a subset of the conduct charged and allows the state to frame all of the instructions based only on its factual theory of the crime.
. Identical language in an instruction is almost never required. When a defendant requests a converse instruction in a civil case, the instruction “should mirror the language of the Verdict director,” Leake v. Burlington N. R. Co., 892 S.W.2d 359, 365 (Mo. App. E.D. 1995); MAI 33.01. When a criminal defendant seeks a converse instruction, the defendant may select an.element or elements from the verdict. director which he or she seeks to emphasize. State v. Julius, 453 S.W.3d 288, 302 n.10 (Mo. App. E.D. 2014); MAI-CR 3d 308.02. In neither instance are the jury instructions limited to the language of the information.