concurring specially.
[¶ 31] I agree with much of the majority’s opinion, and write separately on the issue of a lesser included offense instruction.
[¶ 32] Convicted of knowingly causing contact by bodily fluids with a law enforcement officer or correctional facility employee, the defendant contends the trial court erred by failing to instruct on the lesser included offense of recklessly causing such contact.
[¶ 33] The defendant did not ask for a lesser included offense instruction, nor object to the trial court’s failure to give one. The majority says the defendant could have waived — and implicitly did waive — his right to a lesser included offense instruction, assuming he was entitled to one. I write to point out that the defendant was not entitled to a lesser included offense instruction, and such an instruction would have been improper.
[¶ 34] The defendant admitted urinating out of his cell. The officer testified the defendant was very close, laughed, and spoke about what he was doing. The officer testified there was no way the defendant did not know. The defendant’s *39defense was that the officer lied. The defendant testified the officer was not present when the incident took place, and the officer testified he was present when the incident took place. If the jury had believed the defendant’s testimony, the defendant could not have been convicted of either offense. “An instruction on the lesser included offense would have been improper because the evidence would not permit the jury to rationally convict the defendant of the lesser offense and acquit him of the greater.” State v. McDonell, 550 N.W.2d 62, 63-64 (N.D.1996) (The district court did not err by not giving an instruction on the lesser included offense of sexual assault, because the only contested issue was the consent of the victim.); see also State v. Tweed, 491 N.W.2d 412, 413-14 (N.D.1992) (it was not error to refuse an instruction on the lesser included offense of negligent homicide, because the evidence did not show the defendant’s conduct was negligent but rather showed the defendant’s conduct was at least reckless). The trial court did not err, because the evidence presented did not entitle the defendant to a lesser included offense instruction. Indeed, the trial court would have erred by giving the instruction.
[¶ 35] Dale V. Sandstrom, J.