(dissenting) — The majority misreads State v. Curran, 116 Wn.2d 174, 804 P.2d 558 (1991) and State v. Davis, 121 Wn.2d 1, 846 P.2d 527 (1993), reaching a result neither anticipated nor intended by State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978) and illogical under RCW 10.61.006. I dissent because the majority goes far beyond what our cases and the statute say, and limits, if not eliminates, the availability of lesser included instructions.
Broadly read, Davis states that a party is not entitled to an instruction on a lesser included offense unless the lesser offense is included in every alternative means of committing the charged offense:
Under this felony murder statute, the commission of any felony supports a felony murder conviction. Thus, there are numerous alternative ways of committing this offense apart from assault. Given the wide breadth of alternatives, there are no lesser included offenses to second degree felony murder.
Davis, 121 Wn.2d at 6.
Davis should not be interpreted so broadly. The majority’s interpretation of Davis severely restricts the utility of RCW 10.61.006, which is one of our oldest criminal statutes, virtually unchanged since the first criminal code adopted in Washington Territory. Laws of 1854, § 123, p. 120. RCW 10.61.006 is a logical and fair rule, which can be used either by the prosecution or by the defense. The statute is severely limited under the majority’s formulation of Davis by virtue of the fact the Legislature has added alternative means of committing almost every offense. A *737lesser offense will seldom satisfy every alternative means of committing the greater. Under the majority’s reading, the statute has no practical meaning and no practical application.5 The test we recognized and applied in Workman, properly applied, gives meaning to the statute.
Although Davis purports to follow Workman, the majority’s interpretation of Davis is inconsistent with the result in Workman. Workman was convicted of attempted first degree robbery while armed with a deadly weapon. In Workman, we found the trial court had erred in failing to instruct the jury on the included offense of carrying a weapon. Workman, 90 Wn.2d at 447. In doing so, we looked to "[t]he elements of the crime in the context of this case” and decided that carrying a weapon "is a necessary element of the greater crime of first-degree robbery.” Workman, 90 Wn.2d at 447-48 (emphasis added). However, looking at the statute at issue in Workman, the use of a deadly weapon in the commission of a robbery is just one of several ways to commit first degree robbery, not all of which require the defendant to use or possess a deadly weapon. Under the Davis and majority’s interpretation, Workman was incorrectly decided because in that case the lesser offense was not included in every alternative way of committing the charged offense. Thus, although the majority purports to apply the test we articulated in Workman, its application of the legal prong of the test in Curran and Davis effectively and unnecessarily overrules the result we reached in Workman.
Neither the facts of Davis nor its predecessor Curran require such a broad interpretation. The defendant in Cur-ran was charged with two of the three ways of committing vehicular homicide, but not the third alternative, reckless *738driving. Curran, 116 Wn.2d at 183. We held that the crime of reckless driving was not included in the crime charged against Curran because reckless driving is not a lesser included offense of driving with disregard for the safety of others. Curran, 116 Wn.2d at 183. We cited State v. Eike, 72 Wn.2d 760, 765, 435 P.2d 680 (1967), which held that driving with disregard for the safety of others is a form of culpability "falling short of recklessness.” It would make no sense to say that an offense requiring greater culpability — recklessness — could be considered a "lesser,” or an "included” offense of driving with disregard for the safety of others.
In Davis, the defendant was charged with felony murder for killing in the course of a second degree assault. The defendant asked for an instruction on manslaughter, arguing that manslaughter is a lesser included offense of felony murder. Davis, 121 Wn.2d at 4. We rejected Davis’ argument, giving at least three reasons. First, we interpreted Curran to mean that, "a lesser included offense instruction is not available whenever alternative means exist for committing the crime charged,” and pointed out that felony murder can be committed by any number of alternative felonies. Davis, 121 Wn.2d at 5-6. Second, we pointed out that no mental element is necessary to commit felony murder, while manslaughter requires recklessness or criminal negligence. Davis, 121 Wn.2d at 7. This second holding is completely consistent with Curran, which also declined to find that a crime requiring a more culpable mental state is a lesser included offense. Third, we recognized even if defendant Davis had only committed third degree assault, that crime would supply the predicate offense for felony murder, and the defendant would still be guilty of the greater offense. Davis, 121 Wn.2d at 7 n.5. Both Curran and Davis were correctly decided on the grounds a crime requiring a more culpable mental state is not a lesser offense. The majority’s approach extends Cur-ran and Davis far beyond what is necessary under their facts, eroding the principles we adopted in Workman.
The logical approach under Workman and RCW *73910.61.006 requires the court to look to the actual offense charged when deciding whether a party is entitled to a lesser included offense instruction. Only by following this interpretation can we harmonize our cases and assure the State and the defendant will be able to argue their theory of the case.
In this case, because each element of unlawful display of a weapon is a necessary element of assault in the second degree, Mr. Lucky was entitled to a lesser included instruction under the legal prong of Workman.
Madsen, J., concurs with Johnson, J.
Reconsideration denied April 15, 1996.
defendants feel the majority’s narrow rule most severely. By making the initial charging decision and utilizing the liberal amendment rules, the State has the ready ability to alter its theory of the case to meet the evidence. Without the benefit of lesser included instructions, the defense’s ability to argue its theory of the case is severely limited, especially in cases where the defendant concedes he or she has committed some crime, but not as great as the one charged.