concurring in part and dissenting:
With all due respect to my colleagues, I find it very difficult to follow the route to affirmance that the majority takes in rejecting appellant’s claim that an instructional error has facilitated an “irrational compromise verdict.” It surfaces initially when the majority rejects “the dissent’s contention that appellant was entitled to ‘roll the dice’ on the armed rape charge on the facts of this case_” Majority op. at 404 (emphasis supplied). I know we can all agree, however, that an accused does not enter the dice game by choice and that the government has the burden of introducing facts to prove guilt beyond reasonable doubt. I hope we can all agree, and the majority embraces case law for this proposition,1 that an accused is entitled to take his chances on an “all-or-nothing verdict.”
I.
In my view, the jury’s verdict of guilt on the charge of assault with intent to commit rape while armed (an offense not alleged in the indictment) is precisely the kind of compromise verdict this court has found to be incompatible with our notion of justice. Before turning to the legal issues, let me briefly describe the setting in which that verdict was obtained.
On May 22,1991, the government, presumably aware of the inconsistent nature of a report executed by a gynecologist who examined the alleged rape victim on the day of the crime, indicted appellant, inter alia, for armed rape and sodomy offenses. A year later on March 4, 1992, appellant went to trial before a jury. The government presented testimony by the complaining witness (see factual statement, Majority op. at 404), and that of an officer who searched appellant’s apartment where the rape allegedly occurred. In addition, the government called the gynecologist whose written findings had been inconsistent with rape, but who testified that her report had been “inconclusive.” On cross-examination by the defense attorney, the prosecutor objected to the introduction of the doctor’s written report and obtained a ruling by the court that the testimony would be admitted solely for the purpose of impeachment.
In defense, appellant did not take the stand. His counsel outlined his defense; the defendant did not deny that the complaining witness was present in his apartment but he denied threatening her with a gun or having a sexual encounter of any kind with her. Thereafter defense counsel called a Federal Bureau of Investigation forensic scientist to the stand who testified that no blood or semen was found on the carpet where the alleged rape took place or on items of clothing of the alleged victim.2
At the conclusion of the testimony, the court agreed, over the objection of the defendant, to instruct the jury as to the uncharged offense of assault with intent to commit rape while armed, noting that it was the defense who brought out, on cross-examination of the government’s medical expert, the “possibility” that there was no penetration proven by the government.
On the afternoon of March 9, 1992, the deliberating jury, after a short period of time, informed the court by note that it had reached a verdict on two charges but that it was “sharply divided” on the remaining charges. Counsel agreed to a partial verdict and the court, rejecting a suggestion that a mistrial be declared, took verdicts of “Not Guilty” on the charges of armed rape and assault with intent to commit sodomy while armed. The jury was sent back to resume deliberation following a luncheon recess. At 4:00 p.m., the court informed counsel that it had received yet another note from the jury: “We have tried to reach verdicts on all remaining charges but we [were] deadlocked.” *408The court rejected another request for mistrial and gave the Winters3 charge. On the following morning, March 10, the jury returned to announce guilty verdicts as to assault with intent to commit rape while armed and possession of a firearm with intent to commit rape, but not guilty verdicts as to all remaining charges.
II.
There is no question that assault with intent to commit rape is a lesser-included offense of rape.4 The question here, however, is whether the evidence is sufficient to justify the giving of an instruction as to the unin-dicted assault charge. The test for sufficiency is met where there is either “sharply conflicting testimony” on a factual element or where the lesser-included offense is fairly inferable from the evidence. See Lightfoot, supra note 1, 378 A.2d at 673; Anderson v. United States, 490 A.2d 1127, 1129 (D.C.1985). A lesser-included offense instruction may not be given where “the jury would have to engage in an irrational or bizarre reconstruction of the facts of the case.” Id. at 1130. There must be “a reasonable basis on which the jury could find appellant guilty of the [lesser offense] yet entertain a reasonable doubt as to [the element separating the greater offense from the lesser one].” Lightfoot, supra, 378 A.2d at 673.
The majority here, in attempting to set the stage for “conflicting testimony” tells us that the “[r]esolution of that issue [of a rational verdict] turns on an assessment of the evidence presented regarding penetration.” Majority op. at 405. If this were the ease, I doubt very much that the appellant would be before us. This case was prosecuted upon an indictment for armed rape; the defense was a denial of any sexual activity. The evidence of “penetration” was not a contested issue in this context. The government’s only eyewitness (the alleged victim) testified unequivocally that penetration occurred [“three times for anal, three times for vaginal”]. There was no other testimony to support or refute this claim. With respect to the testimony of the complaining witness, therefore, there was no reasonable basis on which the jury could find appellant guilty of assault with intent to rape and yet entertain a reasonable doubt as to rape; there was no evidence that would rationally support a finding that appellant assaulted the victim with intent to commit rape but did not rape her. As appellant’s counsel aptly notes, “to find support in the trial record for a charge of assault to commit rape separate from the actual rape, the jury would have to simultaneously believe and disbelieve the exact same words of the complaining witness’ testimony.” This would constitute a “bizarre reconstruction of the evidence.” Cf. Walker v. United States, 617 A.2d 525 (D.C.1992).
I find no problem with the broad legal principle that a jury may be free to credit some portions, and to discredit other portions, of the testimony of a victim. But no instruction may be given to the jury which would invite an irrational compromise verdict. See Ballard, supra note 1, 430 A.2d at 485-86, where we held that since carnal knowledge is not a lesser-included offense of rape, a jury could have found the defendant guilty of carnal knowledge while exonerating him of rape. I need not belabor the point, however, since my colleagues appear to concede that if one looks only to the testimony of the complaining witness in the instant case, the jury’s verdict would constitute a “bizarre reconstruction of the evidence” (ie., “[i]f no other evidence had been presented on this point, then appellant would be correct.” Majority op. at 405). The majority, however, points to, not evidence, but expert testimony (introduced essentially by the defendant to negate guilt on the rape charge) as providing the requisite basis for giving the lesser-included offense instruction. In its own reconstruction of the evidence (and mindful of the fact that the defendant’s proffer was not that *409there was no penetration but rather no commission of sexual activity at all ),5 the majority combs the record to isolate a single comment of the gynecologist, together with defense testimony introduced by forensic scientists, to establish the purported conflict. The gynecologist, who the government elected to call in the rape case, described her written report (which was not introduced as substantive evidence, but admitted only for impeachment purposes on cross-examination) as “inconclusive.” Her brief exchange with defense counsel was more in the nature of an opinion given in answer to a hypothetical question than proffered testimony. When asked whether, if there were penetration (under circumstances of menstruation), the doctor would expect to find blood on the carpeted floor, the answer was, “I could, yes....” I suggest that this is not conflicting testimony that would justify the giving of an instruction as to the lesser offense.6 Moreover, it does not provide evidentiary support for the existence of that lesser offense. Under these circumstances, the phrase “blood on the floor” is a non-sequitur except to the extent that it confirms the rationality of the jury’s verdict of “nob-guilty” as to the greater offense of rape. There is no question that there was no blood on the floor. An investigating police officer saw no stains on the light carpeting. The testifying complaining witness saw no blood on the floor. An FBI forensic scientist (who had conducted “hundreds of thousands of examinations of blood and body fluids” and who was called by the defense) found no blood (and no semen) on the carpet or on the clothing of the complaining witness.
Under these circumstances, it would not have been rational for a jury to disbelieve the adamant testimony of the complaining witness that she had been repeatedly penetrated (which it obviously did) and to embrace or even remember the tentative opinion of the gynecologist (impeached by virtue of her own inconsistent written report), that she “could” expect to find blood on the floor under certain circumstances. It is true that a trial court may instruct, at the request of the government, and over the objection of the defendant, as to a lesser-included offense, but it is also true that there must be a “sufficient” evidentiary predicate to support that charge. See Glymph, supra note 4, 490 A.2d at 1160, citing Lightfoot, supra, 378 A.2d 670 (where we spoke of “sharply conflicting testimony” to justify the giving of the charge). Compare Lampkins v. United States, 515 A.2d 428 (D.C.1986), where the trial court refused to give a defense requested instruction because the evidence “[did] not affirmatively show, or even suggest,” that the appellant was guilty of the lesser offense rather than the greater; “[it] merely fail[ed] to support the inference [of guilt of the greater offense].” Id. at 433. Even acknowledging that “the jury was free to credit some portions of the victim’s testimony while discrediting others,” the majority’s reconstruction of the evidence does not meet the sufficiency test. Majority op. at 406. As in Lightfoot, supra, the testimony here by the alleged victim (as to penetration) was unequivocal and undisputed. The majority’s reconstructed evidence here, advancing a dispute about “penetration” (like the evidence in Lampkins) does not affirmatively show or suggest that Mr. Bragdon was guilty of assault; it merely fails to support an inference that he was guilty of rape. Finally, such reconstruction on the surface would appear to me to be incompatible with the duty of the government to prove guilt of the lesser offense beyond a reasonable doubt and would place the defense, duty bound to defend against the charged greater offense, between a “rock and a hard place.”
*410In my view, the finding of guilt as to the assault with intent to commit rape charge constituted a compromise verdict. Essentially this case was prosecuted for, and defended against, the charge of rape. The suggestion of compromise and prejudice is apparent here not only from the substantive facts but from the circumstances that developed at trial, including the jury’s deliberation. The very essence of the law is the failure or non-failure of the appellate courts, before applying principles, to recognize subtle differences in the facts of myriad cases. We owe that much to the courts and the juries charged initially with decision-making.7 Under the circumstances in the instant case, the defendant was entitled to an all or nothing at all verdict. It was reversible error for the trial court to have instructed (over the objection of the appellant) on the lesser included offense.
I respectfully dissent.
. See Lightfoot v. United States, 378 A.2d 670, 673 (D.C.1977); Price v. United States, 602 A.2d 641, 644 (D.C.1992); Ballard v. United States, 430 A.2d 483, 487 (D.C.1981).
. Counsel also called a forensic scientist who testified as to hair and fiber redistribution [or contamination] of articles when placed together in a bag.
. See Winters v. United States, 317 A.2d 530 (D.C.1974).
. See Brown v. United States, 576 A.2d 731, 734 (D.C.1990), barring convictions for both assault with intent to commit rape and statutory rape on double jeopardy grounds; see also Brake v. United States, 494 A.2d 646, 649 (D.C.1985); Johnson v. United States, 122 U.S.App.D.C. 1, 350 F.2d 784 (1965). See generally Glymph v. United States, 490 A.2d 1157, 1159-60 (D.C.1985).
. Defense counsel argued in closing argument that “this inconsistency [between the doctor's testimony and her written police form] alone requires you to find ... him not guilty of the sexual assault, any sexual assault charges.”
. The physician testified repeatedly that she was unable to determine from her examination whether the complainant had engaged in non-consensual intercourse or whether the complainant had been sexually penetrated. She also testified that it was not unusual that a woman of the age of the complainant showed no obvious physical signs or injuries after having non-consensual intercourse. There were also statements: “unless she was bleeding heavily, you wouldn’t necessarily expect [to find blood on the carpet];” and “[y]ou might not necessarily find blood on the area where she was lying.”
. The majority’s reliance upon Greene v. United States, 571 A.2d 218 (D.C.1990), is misplaced. That decision dealt with the trial court's ability to enhance a sentence for sodomy in the face of acquittal for rape. We noted that the trial court is given wide discretion to determine punishment.