concurring and dissenting. I concur in the majority’s holding that the evidence amply supports the judgment of conviction of kidnapping with intent to inflict bodily injury. I cannot agree with its further conclusion that, notwithstanding the evidence of guilt, the judgment must be reversed because the trial court refused defendant’s request to instruct on the lesser-included offense of unlawful restraint in the second degree. The evidence in this case overwhelmingly proved that defendant restrained and abducted the victim with the specific intent to perpetrate further violence. No reasonable view of the evidence would support a theory that he merely restrained the victim without the additional intent to injure. Hence, the trial court’s decision was fully justified, and provides no basis to disturb the judgment. Accordingly, I respectfully dissent.
As the majority observes, a defendant is entitled to a lesser-included offense instruction where the evidence is reasonably susceptible of sustaining such an instruction. See State v. Bolio, 159 Vt. 250, 254, 617 A.2d 885, 887 (1992); State v. Delisle, 162 Vt. 293, 306, 648 A.2d 632, 637 (1994). Here the record reveals that defendant accosted the victim in a hallway of the office building where they worked, pulled her into a conference room, threatened her with a knife, dragged her into an open manufacturing area, and then attempted to pull her into a bathroom. When the victim resisted and briefly freed herself, he restrained her again, put her in a headlock, and punched her in the face and stomach.
The evidence thus decisively demonstrates that defendant was not content merely to restrain the victim, but instead endeavored continually to remove her to more isolated regions within the building to commit further acts of violence where there was less risk of detection or interruption. Testimony by the investigating officers and the emergency room physician where the victim was treated provide further proof that the force applied exceeded that which was necessary to merely restrain, and evinced an unmistakable intent to injure.
The evidence, which was largely uncontroverted, thus established that defendant engaged in a series of increasingly violent batteries upon the victim which ended only with her harrowing and unlikely escape. The inference that defendant restrained the victim with the specific intent to inflict injury was thus inescapable; there was no *389rational basis in the record for the jury to infer that defendant’s intent was merely to restrain. If believed, in other words, the evidence provided no reasonable ground to convict defendant of the lesser offense of unlawful restraint and acquit of the greater offense of kidnapping. In these circumstances, courts have uniformly held that an instruction on the lesser-included offense of unlawful restraint is unwarranted. See, e.g., State v. Kyle, 430 S.E.2d 412, 421 (N.C. 1993) (defendant not entitled to instruction on lesser-included offense of false imprisonment where there was no evidence that defendant confined victim for purpose other than that charged); Romero v. State, 34 S.W.3d 323, 325 (Tex. Ct. App. 2000) (court properly refused to instruct on lesser-included offense of unlawful restraint where there was no evidence that would allow rational jury to convict of lesser offense).
The majority correctly observes that there was “disagreement” at trial as to defendant’s intent. 173 Vt. at 384-85, 795 A.2d at 1255. That disagreement was based on defense counsel’s assertion in closing argument that defendant may have acted “irrationally” with no underlying intent whatsoever. Argument is not evidence, however, and the record evidence demonstrated overwhelmingly that defendant restrained and abducted the victim with the intent to injure. The facts are thus not unlike those in State v. Surrett, 427 S.E.2d 124, 125-26 (N.C. Ct. App. 1993), where the victim testified that defendant grabbed her while she was loading groceries into her car, threw her into his car while she struggled to break free, and drove a short distance before she managed to escape through an open window. The victim testified that she was “seared to death,” and a passerby heard her screams. The defendant, who did not testify, was convicted of kidnapping with intent to terrorize.
Rejecting the defendant’s claim that the trial court erred in refusing to instruct on the lesser-included offense of false imprisonment, the court explained:
Where the State presents evidence of every element of the offense charged and there is no evidence negating these elements other than the defendant’s denial that he committed the offense, then no lesser included offense need be submitted____Therefore it is not error to fail to instruct on false imprisonment if there is no evidence tending to show that the victim was kidnapped for some purpose other than terrorizing, or for no purpose.
*390Id. at 128. Here, similarly, defendant cites no record evidence tending to show that the victim was kidnapped for some purpose other than the obvious one of inflicting injury, and counsel’s argument that defendant’s actions might have been bereft of any rational purpose was insufficient to warrant a lesser-included instruction. The trial court, therefore, correctly refused to instruct on unlawful restraint in the second degree. Accordingly, I would affirm the judgment.
I am authorized to state that Justice Morse joins in this concurring and dissenting opinion.