State v. Hibler

*152STEPHEN N. LIMBAUGH, Jr., Judge,

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…