dissenting. Although I agree with the majority’s conclusion that appellant failed to properly preserve her sufficiency of the evidence argument for our review and that her claim of cruel and unusual punishment is unavailing, I must dissent. The trial court should have granted appellant a new trial.
Appellant was charged with the offense of second-degree murder, and ultimately convicted of manslaughter, a Class C Felony. As pointed out in the majority opinion, proof of manslaughter requires evidence that the accused “recklessly caused the death of another person.” Ark. Code Ann. § 5-10-104(a)(3). Negligent homicide is a lesser-included offense and requires proof that the accused “negligently causes the death of another person.” Ark. Code Ann. § 5 — 10—105(b)(1). A person acts negligently when he “should be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.” Ark. Code Ann. § 5-2-202(4). Negligent homicide is a Class A misdemeanor.
In the present case, although the trial court instructed the jury on the offense of negligent homicide, appellant was not given a full opportunity to develop proof that her conduct should be classified as negligence. In her motion for new trial, she pointed out that the hospital at which the child was born recognized a risk that appellant did not possess sufficient intelligence to care for the child properly, that the social worker had contacted her because of an assignment from her agency, that the social worker had observed her child on the date in question, and that the social worker failed in her duty to point out the “substantial and unjustifiable risk” that the child would die from starvation. The fact that the social worker failed to point out the starvation risk is relevant to the question of whether appellant was actually aware of the risk, as required for a manslaughter conviction.
It has been stated that failure to give a lesser-included offense instruction does not constitute reversible error when there is no rational basis for giving the instruction. Gidron v. State, 316 Ark. 352, 872 S.W.2d 64 (1994). It is also clear that reversible error may not be predicated upon failure to give a lesser-included offense instruction where the jury has actually been instructed on different grades of an offense and chooses to convict the accused of the greater. Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997). Although appellant’s argument on appeal does not hinge on whether the proper instructions were given to the jury, her argument is well taken. It is inappropriate to deny a motion for new trial where there is newly discovered evidence that may have had an effect on the outcome of the trial and the fact that the evidence was not discovered sooner is not attributable to a lack of diligence. Misskelly v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).
Here, based on the evidence that was actually before the court, there was arguably no support for a negligent homicide instruction. However, the testimony of the new witness, Margaret Conner, could very well have established a rational basis for an even greater reduction of appellant’s charge. Ms. Conner, who indicated that she had more than twelve years’ experience as a Clinical Psychiatric Social Worker, was prepared to testify that she saw nothing out of the ordinary when she visited appellant’s home on the day of appellant’s son’s death. Ms. Conner’s testimony could very well have illuminated the circumstances surrounding her appointment as a caseworker for appellant’s son, including whether the assignment was based on the hospital’s opinion that appellant lacked sufficient intelligence to recognize signs warning of danger to the child’s health. Appellant’s parents had already testified that they never warned appellant that the child was wasting, and there was other evidence that appellant simply failed to appreciate the gravity of the situation her son was in.
The majority opinion is based on an all-or-nothing, convict- or-acquit type analysis, when in actuality, a conviction of the even lesser offense of negligent homicide, a class A misdemeanor, would be a materially different “outcome” than appellant’s felony conviction. Because the new witness’s testimony could have been used to provide a basis for a negligent homicide instruction, and could have led to an even greater reduction in sentence, it was an abuse of discretion to deny appellant a new trial.
The second hurdle appellant must overcome is to show that her failure to discover the new witness prior to trial did not result from a lack of diligence. Misskelly v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). Appellant’s trial counsel apparently “heard” from appellant that someone had been sent from social services to assess the appellant’s home. Counsel stated in his affidavit that he did a thorough search “throughout the Human Services Department.” Because of appellant’s marginal mental state, and the fact that she was the only link between her attorney and the “mysterious” social worker, it would be unfair to counsel to suggest that he acted negligently or without diligence because he was unable to find the missing witness. Ms. Miles, simply put, did not give her attorney enough to go on. It was not unreasonable for counsel to suspect that the Human Services Department, which has superintending control over matters relating to abuse and neglect of children, would yield information relating to “child welfare.”
Ms. Conner’s own description of her employment is further indication that she could not be “leisurely” found. She stated “I am employed by the Dept, of Health, Jefferson County Health Unit. ... I am contracted by Jefferson Comprehensive Care System Inc., [a private agency].” The abbreviated information appellant provided her attorney was a wholly insufficient lead from which counsel could learn the potential witness’s identity. Appellant was unable to provide a name, telephone number, business card or supervising agency. Also, appellant failed to “flag” the true relevance of the witness’s testimony when she failed to mention that the “social worker” had visited and checked on the child just hours before he died. Finally, the trial court never found that counsel failed to act diligently, and to make such a finding on appeal, relying solely on the record, which is undeveloped on that point, is patently unfair.