¶ 61. {concurring). In the present case, the majority correctly concludes that Evans inappropriately brought his motion claiming ineffective assistance of counsel using Wis. Stat. § (Rule) 809.82(2) (2001-02)1. The majority, however, then declines to address the remaining issues raised before this court. Majority op., ¶ 59. While I agree with the majority that Evans should have brought his ineffective assistance of counsel claim using a habeas *237petition in accord with State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992), I would not resolve this case based on the procedural issue alone. Instead, I would address the remaining issues in this case, especially the issue of the lesser-included offense jury instruction, which the court of appeals decided in favor of Evans in reversing his conviction.
¶ 62. The majority wastes limited judicial resources by deciding this case solely on the procedural issue, and failing to address the other issues presented in this case. The question involving the jury instruction is likely to be presented to this court again, and I would take the opportunity to clarify that issue now, and also to address the other issues raised and discussed in the court of appeals' opinion.
¶ 63. In its decision in this case, the court of appeals correctly set forth the applicable standard when deciding whether a jury should have been instructed on a lesser-included offense:
"A challenge to a trial court's refusal to submit a lesser-included offense instruction presents a question of law which we review de novo. 'The submission of a lesser-included offense instruction is proper only when there exists reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense.1 In determining the propriety of a defendant's request for a lesser included offense instruction, the evidence must be viewed in the light most favorable to the defendant and the requested instruction. Further, 'the lesser-included offense should be submitted only if there is a reasonable doubt as to some particular element included in the higher degree of crime.' 'If the court improperly fails to submit the requested lesser included offense to the jury, it is prejudicial error and a new trial must be ordered.'"
State v. Evans, No. 02-1869-CR, unpublished slip op., *238¶ 8 (Wis Ct. App. July 24, 2003) (quoting State v. Foster, 191 Wis. 2d 14, 23, 528 N.W.2d 22 (Ct. App. 1995) (citations omitted)).
¶ 64. I agree with the State that the court of appeals erred in holding that the circuit court, during the trial of Evans on the charge of attempted first-degree intentional homicide, should have granted Evans's request for a lesser-included offense jury instruction on first-degree recklessly endangering safety, as set forth in Wis. Stat. § 941.30(1). The decision of whether or not to give such an instruction turns on whether there was evidence presented that created reasonable doubt as to whether Evans intended to kill Devine. In this case, the evidence presented established that Devine was shot at by Evans at close range from four to six times. Devine was wounded in the left buttock, the upper and lower left leg, and the right bicep. Importantly, the evidence presented by a third-party eyewitness reasonably leads to the conclusion that Devine sustained the wound to his right bicep while shielding his head from the shooter's bullets.
¶ 65. The court of appeals improperly relied on a string of cases focusing on whether the victim was wounded in a vital part of his or her body. Id., ¶¶ 10-15. See also Hawthorne v. State, 99 Wis. 2d 673, 299 N.W.2d 866 (1981); Terrell v. State, 92 Wis. 2d 470, 285 N.W.2d 601 (1979); and State v. Leach, 122 Wis. 2d 339, 363 N.W.2d 234 (Ct. App. 1984). Here, but for Devine's act of shielding himself with his right arm, he would have been shot in the head. Moreover, the State aptly points out that no evidence was presented that Evans was a marksman deliberately aiming with such precision that he intended to and did cause only nonfatal wounds. Given the facts of this case, the circuit court appropriately refused to give the jury the lesser-*239included offense instruction. The facts do not lead to a conclusion that there was reasonable doubt on the element of intent. There were not reasonable grounds in the evidence both for acquittal on the attempted first-degree intentional homicide charge and conviction on the lesser charge.
¶ 66. Although I am in disagreement with the court of appeals' treatment of the lesser-included offense jury instruction issue, I agree with its resolution of the remaining issues. I agree that any error that may have been committed by the circuit court in refusing to admit the testimony of two witnesses who, it was claimed, would have provided an alibi for Evans was harmless error. Devine identified Evans as the shooter, and Evans himself admitted, in his written statement, to the shooting. Evans, ¶ 17.1 also agree with the court of appeals' decision that Evans's voluntary statement to the police was properly admitted into evidence. Id., ¶ 18. Moreover, the court of appeals correctly concluded that the circuit court did not err when it denied Evans's subpoena duces tecum for the detective who took his statement, since introduction of evidence concerning other statements taken by him would provide more confusion than clarity. Id., ¶¶ 19-20. I further agree that the court of appeals was correct in its conclusion that a new trial should not be granted in the interest of justice pursuant to Wis. Stat. § 752.35.2 Id., ¶ 21. Finally, the court of appeals correctly decided that *240Evans's request for post-conviction discovery was properly denied, because the evidence sought would not have changed the outcome of the trial. Id., ¶¶ 22-24.
¶ 67. While it is appropriate to resolve whether Wis. Stat. § 809.82(2) was used correctly here, or whether the right procedure was to bring a habeas petition in accord with State v. Knight, the other issues raised in this case should also be resolved by this court. Precious judicial resources are wasted by the majority's failure to address those issues here and now.
¶ 68. For the foregoing reasons, I respectfully concur.
Unless otherwise indicated, all references to Wisconsin Statutes are to the 2001-02 edition. Wisconsin Stat. § 809.82(2) states, in relevant part, as follows:
(a) Except as provided in this subsection, the court upon its own motion or upon good cause shown by motion, may enlarge or reduce the time prescribed by these rules or court order for doing any act, or waive or permit an act to be done after expiration of the prescribed time.
(b) Notwithstanding the provisions of par. (a), the time for filing a notice of appeal or cross-appeal of a final judgment or order other than in an appeal under s. 809.30 or 809.32 may not he enlarged.
Wisconsin Stat. § 752.35 states, in relevant part, as follows:
In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and *240may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial....