A jury convicted Arthur James Garrison (“Defendant”) of first degree assault, § 565.050, 1 and second degree attempted robbery, § 564.011. The trial court sentenced him to consecutive prison terms of fifteen years for the assault conviction, and seven years for the attempted robbery conviction. On this appeal, he claims that the trial court erred in rejecting two of his proffered jury instructions which would have authorized a conviction of third degree rather than first degrеe assault. We affirm.
Defendant does not challenge the sufficiency of the evidence supporting his convictions. On review, we view it in the light most favorable to the verdicts, and do not consider contrary or adverse evidence.
State v. McNaughton,
When Roberts was unable to take the handbag away from Patton, he ran back to the car and got in on the passenger side. The car then “jumped forward,” hitting Burke and knocking hеr to the pavement. Patton yelled for the ear to stop, and tried unsuccessfully to help Burke up. The car, with Defendant at the wheel, did not stop, but drove over Burke with its front passenger side tire. The car paused after the front tire passed over Burke, but Defendant accelerated the car and drove over her with the rear tire. Defendant and Roberts then drove away. Burke was briefly rendered unconscious by the incident and suffered severe bruising, three broken ribs, and a collapsed lung. As a result, she was hospitalized for thirteen days, and still felt the effects of the injuries at the time of trial in March 1997.
At trial, Defеndant offered instructions “D” and “F,” each of which would have submitted a different theory of the lesser included offense of third degree assault. The trial court rejected both of these instructions, and instructed the jury only on first degree assault and second degree attempted robbery. In his sole point on apрeal, Defendant contends that the trial court erred in rejecting instructions “D” and “F” because the evidence provided a basis for an acquittal оf first degree assault, and for a conviction of third degree assault.
The distinction between the classes of assault lie in the mental state of the accused and the nature of the injury.
State v. Johnson,
Defendant points out that § 565.070.1(1) and (4) authorize a conviction for third degree assault if a person recklessly causes physical injury to another person, or if he recklessly engages in conduct which creates a grave risk of death or serious рhysical injury to another person. When a person “acts recklessly,” he consciously disregards a substantial and unjustifiable risk that circumstances exist or thаt a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situаtion. § 562.016.4. Third degree assault is a lesser included offense of first degree assault.
State v. Spencer,
Defendant’s rejected instruction “D” would have authorized a conviction for third degree assault if the jury found that Defendant “recklessly caused physical injury to Carla Burk [sic] by running over her with an automobile.” Instruction “F” would have authorized а conviction of the same offense upon a finding that Defendant “recklessly caused physical injury to Carla Burk [sic] by running over her with an automobile, or rеcklessly created a grave risk of serious physical injury to Carl [sic] Burk [sic] by running over her with an automobile.”
Trial courts need not instruct on a lesser included оffense unless the evidence provides a basis for a verdict acquitting the defendant of the greater offense and convicting him of the lesser offense.
State v. Mease,
Here, Defendant argues that the trial court should have given instructions “D” and “F” because his own testimony provided a basis for an acquittal of first dеgree assault and a conviction of third degree assault. Defendant testified that he has poor eyesight, and that he was not wearing his glasses on the evening of November 20, 1996. He was able to see Patton and Roberts struggling in front of the car, but he did not see Burke or anyone else nearby. Defendant had not еxpected Roberts to try to rob anyone, so he tried to drive away while Roberts was out of the car. When Roberts returned to the car, he started cursing and told Defendant to drive off. Defendant tried to push him out of the car, and the two began to scuffle. Defendant did not see anyone around the car during his altercation with Roberts. Apparently, he also did not hear Patton shouting at him to stop the ear. He decided to accede to Roberts’ rеquest after Roberts hit him in the jaw, and he started to drive away. As he did so, he did not feel anything go underneath the car. Defendant testified that he did not know that he hаd run over anyone until the police came to arrest him.
Defendant correctly asserts that this testimony, if believed by the jury, would have supported an аcquittal of first degree assault. He could not have knowingly run over and injured Burke if he were not aware of her presence. His contention that his versiоn of the facts would have supported a conviction of third degree assault, however, does not follow. According to Defendant’s theory, he had no reason to think that Burke was in front of the car. He would not have acted recklessly by failing to check around the fi-ont of the car to see if anyone happened to be lying there. Defendant’s testimony, if believed, would have supported the conclusion that his running over Burke was an accident. That theory would have been a defense to first degree assault in that belief of Defendant’s testimony, would have precluded a finding that he knowingly attemрted to cause serious physical injury to Burke. It would not have supported his present theory that his conduct was “reckless,” which, according to the dеfinition of that term in § 562.016.4, would mean that he consciously disregarded a substantial and unjustifiable risk that Burke was in front of or under the car. Accordingly, Defendant’s testimony wоuld not have supported a conviction of third degree assault, and the trial court did not err in rejecting Defendant’s proffered third degree assault instructions.
The judgment of the trial court is affirmed.
Notes
. All statutory references are to RSMo 1994.