with whom SAUFLEY, C.J., joins, dissenting.
[¶ 17] I respectfully dissent. The crime at issue here, elevated aggravated assault, *103617-A M.R.S. § 208-B- (2006), was adopted by the Legislature to address conduct that was more severe-“elevated”-than the conduct addressed by the standard aggravated assault law, 17-A M.R.S. § 208 (2006). Elevated aggravated assault is a Class A crime. Aggravated assault is a Class B crime.
[¶ 18] We regularly say that “[o]ur primary purpose in interpreting a statute is to give effect to the intent of the Legislature.” Maine Ass’n of Health Plans v. Superintendent of Ins., 2007 ME 69, ¶ 34, 923 A.2d 918, 928; Arsenault v. See’y of State, 2006 ME 111, ¶ 11, 905 A.2d 285, 288. Our Legislature’s intent that one statute be a lesser-included offense of the other is confirmed by looking to the narrow distinction between the proscribed conduct in elevated aggravated assault, “conduct that manifests a depraved indifference to the value of human life,” section 208-B(l)(B), and the proscribed conduct in aggravated assault, causing bodily injury under circumstances “manifesting extreme indifference to the value of human life,” section 208(1)(C).
[¶ 19] It is inconsistent with our Legislature’s evident purpose for the Court to hold that aggravated assault is not a lesser-included offense of elevated aggravated assault. Such is particularly the case here where, without objection from either party, the court, in its jury instructions describing elevated aggravated assault, outlined the elements of the charge with the “depraved indifference” alternative, and then instructed the jury that in order to find the defendant guilty, the jury would have to find that “in this case, the conduct itself must have ... been done either intentionally or knowingly.”
[¶ 20] As part of its description of the elements of the offense of elevated aggravated assault, the court then proceeded to define intentionally and knowingly as those terms are defined in the Criminal Code, 17-A M.R.S. § 35(1), (2) (2006). With that instruction, the court effectively advised the jury that they could find Stewart guilty only if the jury found that Stewart acted with depraved indifference and acted intentionally or knowingly, the alternative to prove guilt under section 208-B(l)(A).
[¶ 21] This instruction added a requirement that the State prove intentional or knowing conduct that, as the Court correctly states, is not an element required to prove elevated aggravated assault. Stewart benefited by the court- imposing this additional element of proof.
[¶ 22] The Court confirmed this instruction when it defined the lesser-included offense of aggravated assault by referring back to the definitions of intentionally or knowingly given in the elevated aggravated assault instructions. In distinguishing aggravated assault from elevated aggravated assault, the court advised the jury, “Now, note in aggravated assault it also includes, must be done intentionally or knowingly. That’s the culpable state of mind that you must find with respect to the defendant. But, it also includes the term recklessly. Aggravated assault can also be committed recklessly.” The court then proceeded to define recklessly in accordance with 17-A M.R.S. § 35(3) (2006).
[¶23] With the crimes defined as they were, it is entirely possible that the jury determined that all of the elements of elevated aggravated assault were proved beyond a reasonable doubt except for the intentional or knowing element added by the court. The jury may have concluded that the State had proved that Stewart acted recklessly rather than intentionally or knowingly and found him guilty of aggravated assault on that basis.
[¶24] As the elevated aggravated assault charge was presented to the jury, aggravated assault is a lesser-included offense pursuant to 17-A M.R.S. § 13-A(2) *1037(2006) under either the “necessarily be committed” language of subparagraph (A) or the lesser “culpable state of mind” language of subparagraph (B), quoted in the Court’s opinion.
[¶ 25] Here, the jury was instructed that elevated aggravated assault has a mens rea element. With the jury so instructed, the precedent focused on by the Court, State v. Boyce, 1998 ME 219, ¶ 4, 718 A.2d 1097, 1099, (a lesser-included offense that does require proof of a culpable state of mind, is not necessarily committed when a greater offense that does not require proof of a culpable state of mind is committed) is not on point. The jury was instructed that both elevated aggravated assault, section 208-B, and aggravated assault, section 208, can be committed with a culpable state of mind. As presented here, aggravated assault is a lesser-included offense of elevated aggravated assault.' The fact that the trial court added to the elevated aggravated assault charge a mens rea element that is not required to support a conviction, should not result in Stewart’s acquittal and allow him to go free because the jury may have decided that the added mens rea element was not proved. I would affirm the conviction.