(concurring in part and concurring in result in part).
I concur with the majority opinion on Issue I (sufficiency of the evidence) and Issue III (fair trial). I concur in result on Issue II (lesser included instruction).
As I perceive it, Issue II is simple and straightforward, but it has been unnecessarily complicated by both the majority writing and the dissent. I respectfully suggest that the confusion flows from their unfortunate mixing and interchanging references to the offenses of “reckless driving” and “careless driving.” They seem to use those terms synonymously. I further respectfully suggest that both writings fail to recognize, appreciate, and consider the important distinctions between these offenses.
First, it must be remembered that Wall was charged with second-degree manslaughter in violation of SDCL 22-16-20, which provides:
Any reckless killing of one human being by the act or procurement of another which, under the provisions of this chapter, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree[.] (Emphasis added.)
Additionally, SDCL 32-24-1, defines “reckless driving” (a Class 1 misdemeanor) as: “Any person who drives any vehicle upon a highway ... carelessly and heedlessly in disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property[.]”
Then, the Class 2 misdemeanor offense of “careless driving” is defined by SDCL 32-24-8 as follows: “Any person who drives any vehicle upon a highway ... carelessly and without due caution, at a speed or in a manner so as to endanger any person or property, not amounting to reckless driving as defined in § 82 — 24—1[.]” (Emphasis added.)
*267It is extremely important to note that Wall did not request a lesser included instruction for the offense of “reckless driving” under SDCL 32-24-1. Therefore, issues involving the offense of “reckless driving” have not been raised or preserved on appeal.
Wall did propose an instruction on a claimed lesser included “careless driving” offense under SDCL 32-24-8, directly quoting that statute, including the underlined portion noted above, which excludes conduct amounting to reckless driving.
The trial court did instruct the jury on the language of the manslaughter statute (SDCL 22-16-20). Additionally, it advised the jury of the statutory definition of “reckless” found at SDCL 22-l-2(l)(d) as follows:
The words ‘reckless, recklessly’ and all derivatives thereof, import a conscious unjustifiable disregard of a substantial risk that the offender’s conduct may cause a certain result or may be of a certain nature. A person is reckless with respect to circumstances when [s]he consciously and unjustifiably disregards a substantial risk that such circumstances may exist.
The trial court also, using appropriate pattern instructions, distinguished between recklessness and negligence.
Although I generally agree with the majority’s dissertation concerning the legal and factual tests for giving lesser included instructions, I would not reach that issue.
It is settled law that a trial court need not instruct on any issue not supported by the facts. State v. Tapio, 459 N.W.2d 406 (S.D.1990); State v. Heumiller, 317 N.W.2d 126 (S.D.1982); State v. Wilson, 297 N.W.2d 477 (S.D.1980); State v. Feuillerat, 292 N.W.2d 326 (S.D.1980); State v. Kafka, 264 N.W.2d 702 (S.D.1978); State v. O’Connor, 86 S.D. 294, 194 N.W.2d 246 (1972).
A specific element of careless driving under SDCL 32-24-8 (and the instruction proposed by Wall) is that it must be conduct “not amounting to reckless driving.” First, how can it be error to fail to instruct on “careless driving” when there has been no instruction on “reckless driving” (and remember, none was requested)? Secondly, under the evidence presented, it would have been improper to instruct on “careless driving,” because an essential element thereof specifically excludes conduct amounting to reckless driving. Wall’s driving was reckless, not careless!
Finally, the majority cites to Pattern Jury Instruction 3-19-38, which sets forth the elements of careless driving under SDCL 32-24-8. Although the majority accurately quotes the pattern instruction, I contend that said pattern instruction is erroneous and inadequate on its face. It fails to include the necessary element that the careless driving not amount to reckless driving as defined in SDCL 32-24-1. Admittedly, the pattern jury instruction committee’s comment to the pattern recognizes such language exists and states:
Assuming the defendant is charged with reckless driving, and the careless driving is offered as. a lesser included, the jury would not consider the careless driving elements unless they first determined or found they had a reasonable doubt as to the reckless driving. If the charge is careless driving and a jury trial is held, the jury would not consider the elements of reckless driving anyway.
At the very least, this comment would recognize my thesis that it would be improper to instruct on careless driving as a lesser included of manslaughter, in the manner proposed by Wall’s counsel.
In summary, as noted by the majority, the evidence supports a determination that Wall drove recklessly. It would be improper to instruct on the claimed lesser included offense of “careless driving” without an additional instruction on the offense of “reckless driving.” None was proposed here.* Therefore, the trial court did not *268err in refusing the proposed instruction on “careless driving.”
I do not reach issue of whether reckless is, in fact, a lesser included of manslaughter. I would save that for a different day.