(concurring specially).
I agree that it was not error to refuse to give the proposed lesser included jury instructions because the legal test was not met. Additionally, the trial court did not abuse its discretion under these circumstances. State v. Marshall, 495 N.W.2d 87 (S.D.1993); State v. Black, 494 N.W.2d 377 (S.D.1993), aff'd on reh’g, 506 N.W.2d 738 (1993); State v. Cook, 319 N.W.2d 809 (S.D.1982).