Appellant Calvin Morris was convicted of first-degree murder and sentenced to forty years in prison. He appeals on the basis that the circuit court erroneously refused to instruct the jury on second-degree murder and manslaughter. We agree that the circuit court erred in not giving an instruction on second-degree murder, but we affirm the court’s refusal to instruct on manslaughter.
During the evening hours of November 26, 1999, Morris and a friend, Daniel Fells, were leaving a nightclub in Little Rock called Elevations and walking towards Morris’s car when a second car driven by Chris Sharp entered the parking lot. In the car driven by Sharp were his wife, Sonya, and Leonard Jackson and Johnny Jackson. According to Morris’s testimony, the Sharp car approached him “real fast,” and he had to jump away to avoid being hit.
An argument ensued between the occupants of the Sharp vehicle and Morris. The Sharp vehicle drove up a hill, turned around, and came down the hill where there was a second encounter between the occupants of the Sharp vehicle and Morris and Daniel Fells, who were now in a car which was also occupied by Courtney Grandy and Kevin Brown. Insults were exchanged, and Kevin Brown fired his pistol.
The Sharp vehicle left the parking lot and proceeded down Asher Avenue. At the intersection of Asher and University Avenues, Morris’s car pulled up beside the Sharp car. There was another vehicular accident at the intersection involving other people, which police officers were investigating. When the light turned green, Morris testified that the window in the back seat of Sharp’s car was halfway down, and he thought he saw a gun.
He further testified that he was scared and panicked. According to witnesses, he fired two or three shots at the Sharp vehicle. One shot passed through the backseat window and struck Chris Sharp in the back of the head, killing him.
Morris was charged with first-degree murder and committing a terroristic act and was tried before a jury. His defense attorney offered instructions on second-degree murder and manslaughter as lesser included offenses, but the circuit court refused to give them. The jury was instructed on justification as a defense. The jury found Morris guilty of first-degree murder and committing a terroristic act but was unable to arrive at a sentence. The circuit court sentenced Morris to forty years on each offense, with the sentences to be served concurrently.
Morris appealed his first-degree murder conviction to the court of appeals on grounds that it was error for the circuit court not to instruct on the lesser included offenses of second-degree murder and manslaughter. The court of appeals agreed that it was error not to give these instructions and, in an unpublished opinion, reversed the murder conviction and remanded for further proceedings. Morris v. State, CA CR.01-1056 (June 5, 2002). The State petitioned this court for a review of the court of appeals decision, and we granted review. When we grant review, we consider the matter as if the appeal had been originally filed in this court. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2000).
I: Second-Degree Murder
Morris first contends that it was error for the circuit court not to instruct on second-degree murder. We agree.
Morris’s counsel proffered the following instructions, relating to second-degree murder, which are based on Ark. Code Ann. § 5-10-103(a)(l) and § 5-2-202(2) (Repl. 1997), after the circuit court refused to give them:
AMCI 2d 1003
SECOND DEGREE MURDER
Calvin Morris is charged with the offense of murder in the second degree. To sustain this charge, the State must prove beyond a reasonable doubt that:
Calvin Morris knowingly caused the death of Christopher Sharp under circumstances manifesting extreme indifference to the value of human life.
DEFINITIONS
“Knowingly” — A person acts knowingly (or with knowledge) with respect to his conduct or the circumstances that exist at the time of his act when he is aware that his conduct is of the nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.
This court has frequently stated that it is reversible error to refuse to instruct on a lesser-included offense when there is the slightest evidence to support the instruction. See, e.g., Ellis v. State, 345 Ark. 415, 47 S.W.3d 259 (2001); Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001). We have further made it clear that we will affirm a trial court’s decision not to give an instruction on a lesser-included offense if there is no rational basis for giving the instruction. See Ellis v. State, supra; Harshaw v. State, supra.
The question before us, then, is, whether a rational basis exists for giving the second-degree murder instruction. Stated differently, was there evidence, however slight, that supported giving the instruction. We believe that there was.
We have recently said that for a defendant to be entitled to an instruction for the lesser-included offense of second-degree murder, he “must be able to point to evidence in the record that supports a finding that he acted with a ‘knowing’ mental state rather than a ‘purposeful’ mental state.” Britt v. State, 344 Ark. 13, 23, 38 S.W.3d 363, 370 (2001). In the case before us, it is beyond dispute that Morris shot his pistol. On direct examination, he testified:
Defense Counsel: Is your window down?
Morris: Yes, sir.
Defense Counsel: Is his [Kenneth Jackson’s] window down
all the way?
Morris: No, sir. It’s like halfway.
Defense Counsel: Okay.
Morris: And so I believed the light turned green because it had to turn green for us to continue on. And right when the light had turned green, I thought I seen — I thought I seen him reach for a gun and I was scared. I freaked out and I shot. I didn’t aim or nothing, I just reacted to the situation.
Based on the fact that Morris testified that he knowingly shot at the Sharp vehicle without aiming at Chris Sharp, the victim, the jury could have believed that there was evidence to support a knowing mental state as opposed to a purposeful mental state to kill Chris Sharp. See Britt v. State, supra. Moreover, he testified that it was Kenneth Jackson that he believed had a gun, not Chris Sharp.
The circuit court erred in refusing to give the second-degree murder instruction.
II: Manslaughter
We turn next to Morris’s contention that he was entitled to an instruction on the lesser-included offense of manslaughter, and, specifically, an instruction on reckless manslaughter. The circuit court refused to so instruct, and Morris’s counsel proffered the following instructions based on Ark. Code Ann. § 5-10-104(a) and 5-2-202(3) (Repl. 1997):
AMCI 2d 1004 MANSLAUGHTER
Calvin Morris is charged with the offense of manslaughter. To sustain this charge, the State must prove beyond a reasonable doubt that:
(A) Calvin Morris caused the death of Christopher Sharp under circumstances that would be murder, except that he caused the death under the influence of extreme emotional disturbance for which there was a reasonable excuse. You should determine the reasonableness of the excuse from the viewpoint of a person in Calvin Morris’s situation under the circumstances as he believed them to be: or
(B) Calvin Morris recklessly caused the death of Christopher Sharp.
DEFINITIONS
“Recklessly.” — A person acts recklessly with respect to the results of her conduct when she consciously disregards a substantial and unjustifiable risk that the results will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the same situation.
Again, the test for whether an instruction should be given is whether there is the slightest evidence to support the instruction and whether there is no rational basis for giving the instruction. See Ellis v. State, supra; Harshaw v. State, supra. In reviewing whether slight evidence or a rational basis exists for giving the manslaughter instruction, we first consider what evidence Morris could conceivably have relied on for recklessly forming a belief that he needed to use deadly force against the Sharp vehicle. We come up with the following:
• In an earlier incident in a nightclub parking lot, the Sharp car almost hit Morris.
• Occupants in the Sharp car and Morris’s car began arguing after that.
• Later in the evening while Morris’s car and Sharp’s car were side-by-side at a stop light, an occupant in the victim’s car either started to roll down his window or had partially done so already. Morris thought he saw a gun, panicked, and shot Chris Sharp.
• Only one person, Daniel Fells, other than Morris testified that threats came from Sharp’s car, but Fells admitted on cross-examination that he probably had told the police officers following the shooting that no threats were made.
Morris relies on the case of Harshaw v. State, supra, as precedent for reversing the circuit court. But in Harshaw, there was evidence to the effect that the victim had a gun and intended to use it. We wrote in Harshaw:
According to Mr. Harshaw’s testimony and that of other eyewitnesses, Mr. Cunningham then made several statements insinuating that if there was a problem, he would settle it with a gun:
• “Oh, that’s all right. I’ll just go get my gun and shoot it up.”
• “It’ll be some pistol play out here.”
• “1’11-get my nine and shoot this MF up.”
• “If there was a problem, I’d have a gun.”
• “Well, you know, if it was a problem, I’d have my gun and I’d shoot — be shooting it up out here, you know.”
• “K-3 [Casey Cunningham] ain’t no punk. If I got a problem, I just boom boom boom like that.”
Thereafter, Mr. Harshaw testified that he and Mr. Cunningham both turned and went to their respective cars. Several eyewitnesses stated that Mr. Cunningham reached into his car through the window on the driver’s side of the car. At the same time, Mr. Harshaw went to the trunk of his car, opened it, and retrieved a shotgun. As Mr. Cunningham came back up from reaching into the car, Mr. Harshaw shot him in the chest. Mr. Harshaw testified that he was afraid Mr. Cunningham was about to pull a pistol from his car and shoot him. As it turned out, Mr. Cunningham did not have a gun.
Harshaw, 344 Ark. at 131, 39 S.W.3d at 754-55.
We held in Harshaw that there was some evidence to support a finding that he recklessly formed the belief that Cunningham was about to shoot him, and that the circuit court erred in not giving the instruction. The Harshaw case with its references to a weapon stands in marked contrast to this case where there is no proof, and not even an indication, that the occupants of Sharp’s car had weapons. Furthermore, the only indications that “threats” were made was Morris’s self-serving testimony and Fells’s contradictory testimony. What those “threats” were was never set out in testimony. The circuit court correctly concluded that this did not rise to the level of a rational basis to warrant giving the instruction.
The catalyst for the shooting, according to Morris, was (1) that a window was rolled down, (2) that there had previously been an argument at the nightclub parking lot, and (3) that he thought h¿ saw a gun. The State makes a valid point in emphasizing that what Morris is arguing is that his fear of being shot, standing alone without other supporting evidence, is enough for the formation of a reckless belief that a lethal threat existed. Subjective fear of being shot, without some basis for that fear, should not be the determinant. In short, we would go too far were we to reverse the circuit court’s decision and hold that a defendant’s testimony that he was “scared” and “freaked out,” without some supporting evidence that the victim had a weapon, was enough to entitle him to a manslaughter instruction. In Harshaw, we pointed to the fact that there was some evidence supporting the appellant’s recklessly formed belief because the victim had “made comments about using a gun if there was a problem” and then went to his car and “reached inside the driver’s window.” Harshaw, 344 Ark. at 132, 39 S.W.3d at 756. Here, there was no such supporting evidence.
We underscore the point that it first falls to the circuit court to determine whether there is a rational basis -for giving of a jury instruction. Here, the circuit court concluded that there was none. In Harshaw, this court pointed to a footnote in the Original Commentary to Ark. Code Ann. § 5-2-614 (Repl. 1977), which deals with the formation of a recldess belief that the use of force is necessary in the context of justified homicide. The quoted commentary reads in part:
“We do not believe a person ought to be convicted for a crime of intention when he has labored under a mistake such that, had the facts been as he supposed, he would have been free from guilt. The unreasonableness of an alleged belief may be evidenced [sic] that it was not in fact held, but if the tribunal was satisfied that the belief was held, the defendant in a prosecution for a crime founded on wrongful purpose should be entitled to the judgment on the assumption that his belief was true.”
Harshaw, 344 Ark. at 134 fn.1, 39 S.W.3d at 757 fn.1. In short, the Commentary looks to the tribunal, which in common parlance is the court, as the first determiner of whether a rational basis supports the reckless formation of a belief and whether a jury question, accordingly, exists. In the case before us, the circuit court found that there was no rational basis to support the reckless formation of a belief that lethal force was about to be used and denied the instruction.
Morris challenges the circuit court’s decision that the evidence did not support the giving of the manslaughter instruction and urges that the court erred. In our judgment, the circuit court properly could discount the self-serving testimony of Morris that threats were made and the contradictory testimony of Daniel Fells, who first told police officers at the crime scene that no threats came from the Sharp vehicle and then testified to just the opposite at trial. We decline to hold that the circuit court committed reversible error in this regard.
Affirmed in part. Reversed and remanded in part.
Imber, J., concurs in part and dissents in part.