Justice, concurring in part and dissenting in part.
I concur in the majority’s holdings on appellants’ first and' third points on appeal, but I respectfully dissent on the second point on appeal. I would reverse the circuit court’s ruling rejecting appellants’ proffered jury instruction on the lesser-included offense of third-degree battery.
As the majority states, 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. Webb v. State, 2012 Ark. 64, 2012 WL 503885. Appellants argue that there was ample evidence in this case from which the jury could have found their conduct toward their son to be reckless, rather than knowing, and I agree. Arkansas Code Annotated section 5-13-201(a)(9) (Supp.2011), which sets out the elements of first-degree battery, requires that the defendant “knowingly” cause serious physical injury, while the third-degree-battery statute requires only that the defendant act “recklessly.” Ark.Code Ann. § 5-13-203(a)(2) (Repl.2006). A person acts “recklessly” with ^respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial or unjustifiable risk that the attendant circumstances exist or the result will occur. Ark.Code Ann. § 5-2-202(3) (Repl.2006).
According to the uncontradicted evidence presented at trial with regard to Bruner, Workman was responsible for feeding, bathing, and caring for R.B. Bruner stated that he trusted Workman to properly care for their son, that he understood that she was feeding him every three to four hours, and that he also saw her feeding the baby. Bruner testified that R.B. was bundled up most of the time with a cap on his head and that it was not until two days before the police showed up that he noticed his son’s sunken fontanel. At that point, he stated that he became worried and spoke to neighbors about his concerns. Bruner testified that he did not want any harm to come to his son and that he and Workman did not decide to quit feeding R.B.
In Workman’s statements to police that were played at trial, she initially insisted that she fed R.B. three ounces of formula every two to three hours, then admitted that she fed him every five to six hours because she did not wake him up to eat. After repeated questioning by two different detectives, Workman changed her story several times, stating that she fed her son once per day, once per week, or twice per week, depending on if she had the money for formula. While she admitted that she did not feed her son “like he really wants to be fed,” at no time did Workman indicate that she intended to hurt him.
There was also evidence presented that both appellants suffered from below-average intellectual functioning, that Bruner functioned at a borderline level and had .memory and |^confusion issues, and that Workman was receiving disability for intellectual delays and bipolar disorder. Their former caseworker, Melissa Vanderhoof, testified that intellectual functioning is important to the care of a child and that someone with low intellectual functioning has an impaired ability to make good decisions. Further, there was evidence that R.B. had been to the pediatrician on two occasions, that he had gained weight between his first and second visits, that there were no concerns noted by the doctor at the child’s last visit only three weeks prior to appellants’ arrest, and that R.B. had been twice prescribed medication for thrush, which can make it painful for a child to eat.
The evidence recited above clearly amounts to more than slight evidence from which the jury, which is responsible for determining the weight and credibility to be given to the evidence, could find that appellants acted recklessly, rather than knowingly, toward their son. While the majority cites Sbabo v. State, 264 Ark. 497, 572 S.W.2d 585 (1978), the issue in that case was whether the defendants were entitled to lesser-included instructions on second- or third-degree battery, and this court held that there was evidence to support the second-degree battery instruction as to one defendant because there was evidence of reckless intent. Here, there was no proffered instruction on second-degree battery, and the only issue is whether appellants were entitled to an instruction on third-degree battery. Because the injuries to R.B. met the definition of “serious physical injury,” the majority contends that there was no rational basis for a verdict acquitting appellants of first-degree battery and convicting them of third-degree battery, even if there was evidence of reckless intent presented here. I cannot agree with the majority’s decision on this point, as this holding Incompletely ignores that there are two elements contained in the first-degree-battery statute. See Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994) (stating that although the victim clearly suffered serious physical injury, that is only one of the facets of proof required to sustain a conviction under the first-degree-battery statute). While the injuries to R.B. could be classified as serious physical injury, there was also ample evidence from which the jury could have found reckless intent on the part of appellants, and under these facts, I find that the circuit court abused its discretion in refusing to instruct the jury on third-degree battery.
BAKER and HART, JJ., join in the dissent in part.