The opinion
D. C. Kolenda, J.
(concurring). While I concur in the result reached by the majority and with most of what the majority says in support of that result, I disagree with the harmless error analysis in part in. I agree that the trial court’s refusal to instruct concerning third-degree criminal sexual conduct was harmless error, but not for the reason stated by the majority. That the jury found defendant guilty of all four alternative forms of first-degree *730 criminal sexual conduct charged against him does not establish that that jury would have rejected the alternative of third-degree criminal sexual conduct. That a jury does not acquit when that is the only alternative to a conviction proves nothing about how it would have considered another alternative. A jury confronted with the choice of acquitting a guilty defendant because the crime does not precisely fit the available guilty verdict is likely to return a verdict of guilty, not a verdict of acquittal.
The refusal in this case to instruct regarding a lesser offense was harmless because the jury’s verdicts in this case bespeak findings of fact that preclude a conviction of third-degree criminal sexual conduct. The verdict of guilty of first-degree criminal sexual conduct means that the jury found that defendant had engaged in forced sexual penetration with the complainant. The offense consists of penetration plus an aggravating factor. The verdict of guilty of the breaking and entering charge establishes that the sexual misconduct occurred during the commission of another felony, making it criminal sexual conduct in the first degree as charged. For that reason, but only for that reason, it necessarily follows that the option of third-degree criminal sexual conduct would have been rejected had it been presented, rendering harmless the instructional error in this case. People v Beach, 429 Mich 450, 492 ; 418 NW2d 861 (1988).
The analysis to which this separate opinion is directed is, I believe, important for the jurisprudence of this state. The majority’s different analysis invites ill-advised conduct by prosecutors. That analysis sanctions overcharging. By parsing a single offense into alternatives and charging them separately, a prosecutor can avoid appropriate *731 instructions involving lesser included offenses if, as will usually happen, the jury opts to convict a guilty individual, albeit of too much, rather than acquit. The majority’s analysis, while leading to the right result, is ill-advised because it gives prosecutors an easy way to hide potentially significant error.