concurring.
I fully agree with the conclusion reached by the majority in this case that no evidence in the record justifies submitting the lesser-offense instructions to the jury. I write separately to point out that, under the doctrine of lesser-included offenses, one offense is necessarily included within another if the elements of the minor offense are identical to part of the statutory elements of the greater offense charged in the information. The fact that it is possible to commit an aggravated robbery without also committing assault does not preclude a simple-assault instruction where, as in this case, the form of aggravated robbery charged includes the elements of assault.
Rule 32(c), W.R.Cr.P., specifies that a defendant may be convicted of an uncharged offense necessarily included in the particular offense charged in the information:
“(c) Conviction of lesser offense. — The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.” (Emphasis added.)
In developing criteria for applying this rule in Balsley v. State, Wyo., 668 P.2d 1324 (1983), and State v. Selig, Wyo., 635 P.2d 786 (1981), we measured the elements of the purported lesser-included offense against the elements of the specific offense charged in the information.
The United States Court of Appeals for the District of Columbia Circuit, in interpreting the identical Rule 31(c), F.R.Cr.P., held that, even though robbery without assault is possible, assault with intent to rob is necessarily included in robbery where the indictment charged a taking by force and violence. Joyner v. United States, 116 A.D.C. 76, 320 F.2d 798 (D.C.Cir.1963). Furthermore, the statutory offense charged in the indictment, not the offense established by trial proof, controls the propriety of the lesser-included-offense instruction. Kelly v. United States, 125 A.D.C. 205, 370 F.2d 227 (D.C.Cir.1966), cert. denied 388 U.S. 913, 87 S.Ct. 2127, 18 L.Ed.2d 1355 (1967). The Supreme Court of Iowa, in State v. Sangster, Iowa, 299 N.W.2d 661, 663-664 (1980), framed the test as follows:
“The elements of an offense are determined by the statute defining it rather than by the charge or the evidence. [Citation.] When the statute defines an offense alternatively, the relevant definition is the one for the offense involved in the particular prosecution. [Citations.] “When the elements of the major offense are identified, the next inquiry is whether the elements of the lesser offense are included in them. For that purpose, it is necessary to identify the elements of the lesser offense. If the minor offense is defined alternatively, the offense is included if any of the alternatives are included. * * * Because an offense is necessarily included in another if it is an elementary part of the greater, an offense is necessarily included if one of its statutory definitions makes it an elementary part of a greater offense. When so included, the major offense cannot be committed without also committing the minor offense.”
The above rules follow from the nature and purpose of the lesser-included-offense doctrine. The doctrine developed at common law to aid the prosecution in cases where the evidence failed to establish some *125element of the offense originally charged. Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973). Although the defendant may also request a lesser-included-offense instruction, his right extends no further than that of the prosecutor. The right of the prosecutor is limited to the offense made known to the defendant through the indictment or information. Kelly v. United States, supra.
The information in the instant case charges that appellant
“ * * * did unlawfully and feloniously, steal, take and carry away $165.00 in cash, a watch valued at $50.00 and a wallet valued at $6.00, the property of James Whitehead, with intent to deprive James Whitehead, the owner or lawful possessor, and during the course of committing the crime use or exhibit a deadly weapon or a simulated deadly weapon, contrary to W.S. § 6-2-401(c)(ii), 1977 Republished Edition.”
Section 6 — 2—401(c)(ii), W.S.1977 (June 1983 Replacement), provides:
“(c) Aggravated robbery is a felony punishable by imprisonment for not less than five (5) years nor more than twenty-five (25) years if in the course of committing the crime of robbery the person:
# ⅜ !fc * ⅜5 ⅝
“(ii) Uses or exhibits a deadly weapon or a simulated deadly weapon.” (Emphasis added.)
Robbery is defined in § 6-2-401(a), W.S. 1977 (June 1983 Replacement):
“(a) A person is guilty of robbery if in the course of committing [larceny] he:
“(i) Inflicts bodily injury upon another; or
“(ii) Threatens another with or intentionally puts him in fear of immediate bodily injury.” (Emphasis added.)
Thus, appellant was on notice that the State might attempt to establish aggravated robbery through proof of her use of a deadly weapon and infliction of bodily harm.
I agree with the majority that battery requires proof of a state of mind not required for conviction of the charged offense, and that reckless endangering also contains elements not found in the charged crime. Therefore, these offenses are not necessarily included within aggravated robbery, as charged in the information. All of the elements of simple assault, however, can be found in the charged crime.
Section 6-2-501(a), W.S.1977 (June 1983 Replacement), provides:
“A person is guilty of simple assault if, having the present ability to do so, he unlawfully attempts to cause bodily injury to another.”
Present ability to cause bodily injury cannot be considered a distinct element from “Uses or exhibits a deadly weapon,” § 6-2-401(c)(ii), since proof of appellant’s use of a deadly weapon necessarily results in proof of her ability to cause bodily injury. In addition, both simple assault and aggravated robbery contain the bodily injury element and an attempt to cause the common element is not a disqualifying element under Rule 32(c). Therefore, simple assault is a lesser-included offense of aggravated robbery, as charged. See Joyner v. United States, supra.
The evidence presented at trial, however, did not support an instruction on simple assault. The conflict to be resolved by the jury was whether appellant or some unknown assailant robbed Mr. Whitehead. No evidence suggests that appellant committed only assault. Therefore, appellant failed to satisfy prong four of the Chapman test as set out in State v. Selig, supra, 635 P.2d at 790, and followed in Balsley v. State, supra:
“ * * * (4) [T]he proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense * *
The trial court properly refused appellant’s requested instructions based on insufficiency of the evidence.