concurring.
I am in full agreement with the majority’s holding that the case must be reversed for failure to instruct the jury on third degree assault. I question, however, the mechanics of the majority’s lesser included offense analysis by which the propriety of the third degree assault submission depends solely on a comparison of the evidence supporting first degree assault, the so-called “charged offense,” with that supporting third degree assault. Instead, the comparison should be made between the evidence supporting second degree assault, which was the “charged offense” of which the defendant was actually convicted, and the evidence supporting third degree assault. Although the distinction between these two analyses is merely academic in this case, its practical effect will lead to anomalous results in other cases, as I will attempt to explain.
I.
Lesser-included offense analysis is controlled by section 556.046, RSMo 1994, which states:
1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It is specifically denominated by statute as a lesser degree of the offense charged; or
(3) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein.
2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
As I understand the majority opinion, no comparison need be made between the evidence supporting submission of the second degree assault charge and that supporting submission of third degree assault because second degree assault was not “the offense charged” under section 556.046.2. Under this rationale, third degree assault must be submitted even though there is no basis for a verdict acquitting the defendant of second degree assault, and further, as stated, the only comparison to be made is between first degree assault and third degree assault. By extending this rationale to all other cases, once it is determined that “there is a basis for a verdict acquitting the defendant of the offense charged ...,” then the court, if requested, must instruct down on every lesser included offense.
The underpinning of the majority’s rationale is that the “offense charged” is simply the offense named in the information, which is first degree assault. As the majority explains, “second degree assault was not the offense charged because, by the terms of the statute, second degree assault is not both an included offense and the offense charged.” This holding, however, does not rest on the express terms of the statute because the statute does not state that “second degree assault is not both an included offense and the offense charged.” Instead, the majority is apparently relying on the implication that the separate references to “offense charged” and “offense included in an offense charged” means that the two must be different.
In doing so, the majority disregards the countervailing implication that by naming an offense in the information, the prosecutor automatically charges, as the majority concedes, the lesser included offenses. The “offense charged,” in other words, consists not only of the named offense but the lesser included offenses as well. That is the import of section 556.046.1, which allows a defendant to be “convicted of an offense included in an offense charged.” *153Accordingly, the offense charged of first degree assault is necessarily the offense charged of second degree assault and the offense charged of third degree assault. Thus, under a fair reading of the statute, second degree assault is indeed both an included offense and the offense charged.
In context, the statute obligates the trial court to determine first whether there is a basis for acquitting the defendant of the offense charged of first degree assault and convicting him of second degree assault and, if so, then to determine whether there is a basis for acquitting the defendant of the offense charged of second degree assault and convicting him of third degree assault. This stair-step approach is not only consistent with the language of the statute, but also precludes the anomalous results that could not have been intended by the legislature. For example, the trial court, under the majority’s rationale, theoretically could submit first degree assault and third degree assault, but not second degree assault. If, in other words, the third degree assault submission is not dependent on a determination that there is a basis for acquitting the defendant of second degree assault, then the anomalous and absurd result obtains that no second degree assault submission need be given. The absurdity, of course, lies in the fact that the jury in some cases may well be denied the ability to convict on the one offense that best fits the evidence. In effect, the parties are allowed to gamble on an “all-or-nothing” submission of the highest degree of the offense charged in the information versus the defendant’s submission of a lesser included offense two or three steps down, with no submission for the intermediate lesser included offense(s). Neither justice nor the statute is served by the windfall to the party that wins the gamble, or by the shortfall to the party that loses, when the evidence shows that the defendant committed a different crime than either of those submitted to the jury.
II.
This same lesser included offense issue has been addressed at length in State v. Branyon, 939 S.W.2d 921 (Mo.App.1996), an en bane decision of the Court of Appeals, Eastern District, and resolved by a nine-two vote1 that was contrary to the majority opinion in this case. Inexplicably, the majority fails to discuss Branyon, but it can fairly be said that Branyon is now overruled. Nevertheless, the case serves as an excellent example of a factual situation, unlike the case at hand, where a comparison between the higher offense on which the defendant was convicted (but not the so-called “charged offense”) and the lesser included offense that was not submitted makes a critical difference in the outcome of the case. In Branyon, the defendant, who had been convicted of the class C felony offense of stealing from the person, claimed that the trial court erred in refusing to instruct the jury on the lesser included offense of misdemeanor stealing. Defendant had been charged in the information with first degree robbery, and the trial court had instructed the jury not only on that charge but also on second degree robbery and ultimately on felony stealing from the person, the charge on which the jury based its verdict.
In its lesser included offense analysis, the Court of Appeals majority compared only the evidence supporting felony stealing from the person with that supporting misdemeanor stealing. Applying section 556.046.2, the court determined that I) there was no basis to acquit the defendant of felony stealing “because victim and defendant both testified defendant took the money from the victim’s hand, i.e., ‘from the person of the victim,’ ” id. at 924, and 2) that there was no basis for a jury to convict defendant of misdemeanor stealing *154“because defendant’s own testimony satisfied the fourth element of felony stealing, ‘that the property was physically taken from the person of [the victim].’ ” Id. As part of its analysis, the court expressly rejected defendant’s claim that the comparison to be made under the statute is between the “charged offense” in the information, which was first degree robbery, and the lesser included offense of misdemeanor stealing. Citing this Court’s observation in State v. Olson, 636 S.W.2d 318, 321 (Mo. banc 1982), that the purpose of section 556.046 is to reduce the requirement to instruct down “unless the jury could find the defendant not ‘guilty of the higher offense and guilty of the lesser,’ ” the Court of Appeals held that “instructing down is required only when there is a basis for a verdict (1) acquitting the defendant of the offense charged and any lesser included offense submitted to the jury, ie., the higher offense, and (2) convicting the defendant of another lesser included offense. Branyon, 939 S.W.2d at 925. The trial court’s refusal to instruct down to misdemeanor stealing was thus approved.
However, had Branyon been decided under the lesser included offense analysis used by the majority in this case, which is the same analysis used by the Branyon dissent, the outcome would have been different. There would have been no comparison between felony stealing from the person and misdemeanor stealing, but only a comparison between first degree robbery (the, so-called “charged offense”) and misdemeanor stealing. According to the record, there was indeed a basis for acquitting defendant of first degree robbery (the evidence that defendant had a weapon was weak) and convicting the defendant of the lesser included offense of misdemeanor stealing. As such, the case would have been reversed for failure to instruct on misdemeanor stealing, despite the fact that there was no basis to acquit the defendant of felony stealing from the person.
III.
In tacit recognition of the fact that section 556.046 requires a stair-step analysis for lesser included offenses, this Court has for years mandated a jury instruction that implemented a stair-step analysis. That instruction is set out in paragraph 3(b) of the Notes on Use for MAI-CR3d 304.02, the generic verdict directing instruction applicable to all offenses, and states, as preceded by the pertinent note on use:
For each lesser graded or lesser included verdict directing instruction, the introductory paragraphs will read:
If you do not find the defendant guilty of [name of offense from immediately higher verdict director ] as submitted in Instruction No._, you must consider whether he is guilty of [name of offense from the lesser verdict director ] under this instruction....
Without expressly so stating, the majority now has rejected the Court’s long-accepted lesser included offense analysis and has effectively rewritten paragraph 3(b) so that the first bracketed provision should state “[name of highest offense charged in the information ].”
Oddly, the majority maintains that the stair-step or “serial” procedure “is properly outlined in Note on Use 3(b) to MAI-CR3d 304.02,” as if it still has some viability. This cannot be so, at least from a theoretical standpoint, because the lesser included offense analysis under the statute, as described by the majority, is different than the analysis under the instruction. As noted, the former requires.a comparison between the “offense charged” in the information with the lesser included offense submitted, while the latter requires a comparison between the “offense from the immediately higher verdict director” and the lesser included offense submitted.
From a practical standpoint, given the likelihood that prosecutors will insist on submission of any intermediate lesser included offense(s), the cases will usually be instructed in a stair-step or “serial” procedure. Nonetheless, prosecutors will not *155always insist on the submission of the intermediate lesser included offense and instead will opt for the “all-or-nothing” gamble described below the submission of the highest degree of the offense charged versus the defendant’s submission of a lesser included offense two or three steps down. The majority does not appear to address this problem. In these certain situations, the trial judge is left in a lurch whether to apply the statutory analysis or the instructional analysis, as the different analyses will lead to disparate results. Furthermore, if, indeed, trial courts are to follow the instructional analysis, then why does the majority not follow the same directions on appellate review? Stated another way, why review this case under the statutory analysis, but require the trial courts to follow the instructional analysis? This question is left unanswered because, unfortunately, there is no good answer.
IV.
In sum, I would abide by the position of the Branyon majority, which is the same as that reflected in paragraph 3(b) of this Court’s Notes on Use for MAI-CR3d 304.02. It is a position consistent both with the language of the statute and with the legislative purpose, and it avoids the anomalous results that the legislature could not have intended. However, I concur in the result of this case because under either of the lesser included offense analy-ses, the jury should have been instructed on third degree assault.
. Three other judges, completing the full complement of 14 judges on the en banc court, concurred on other grounds.