concurring in part and dissenting in part.
While I agree that the trial court abused its discretion in refusing to instruct the jury on the lesser-included offense of third-degree battery and join Justice Hoof-man’s dissent on this point, I write separately because I cannot say that there is not the “slightest evidence” from which the jury could have concluded that the baby suffered only “physical injury” as opposed to “serious physical injury.” As the majority points out, a serious physical injury is one that “creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.” Ark.Code Ann. § 5-1-102(21) (Supp.2011). The majority asserts that death would have occurred within days had the child not received medical attention. There was certainly evidence to support this conclusion, but two days without hydration would create a substantial risk of death for anyone. There is also evidence that the child needed only to be fed to be brought back to health. While there is substantial evidence that the child suffered |j>na serious physical injury, I cannot say that there is not the slightest evidence that the child suffered a physical injury under our law. It is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. Jones v. State, 2012 Ark. 38, 388 S.W.3d 411.
Additionally, I believe the circuit court erred in excluding appellants’ mental examination from evidence. Appellants’ mental examination was relevant evidence that the circuit court should have allowed. Appellants sought to introduce the mental examination to help the jury determine whether appellants acted knowingly or recklessly and to explain Workman’s inconsistent statements. The evidence was not offered to show whether appellants had the ability to form the specific intent necessary to commit first-degree battery, as in Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994), and in Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). Instead, the evidence was offered to help the jury determine whether appellants had formed the specific intent necessary in this instance. Because such evidence is not excluded under our prior precedents, it was admissible relevant evidence under Arkansas Rule of Evidence 402. Ark. R. Evid. 402 (2012).
The majority also holds that the exclusion of the mental examination was harmless error, as “appellants presented ample proof of their intellectual limitations.” However, the proof presented, testimony from Melissa Vanderhoof and the records admitted from the Oklahoma dependency-neglect proceeding, are not the same as a mental evaluation outlining appellants’ specific intellectual quotient and mental abilities performed by a forensic psychologist.
12tI would reverse the circuit court’s ruling rejecting the appellants’ proffered jury instruction on the lesser-included offense of third-degree battery. Further, I would reverse and remand on appellants’ first point on appeal, because it is an issue likely to recur on retrial. I would affirm as to appellants’ third point on appeal.1
HART, J., joins.
. While the majority’s footnote 4 is correct that the testimony demonstrated that the child required medical intervention and close supervision, the record also shows that the medical intervention and close supervision consisted of nothing more than feeding the child. While overwhelming evidence may exist that the injury suffered by the child was a serious physical injury, there is still the “slightest evidence” that the injury suffered was only a physical injury.