¶1dissenting. This court should take the State’s appeal when the issue raised is “important to the correct and uniform administration of criminal law.” Ark. R. App. P. — Crim. 3. Here, the issue raised by the State, as I see it, is whether a trial judge is required to give instructions of the lesser included offenses requested by the State when a rational basis exists in the evidence for doing so. That is an issue that cries for resolution and is patently one of universal significance. Indeed, a state statute requires giving instructions on lesser included offenses, where a rational basis exists for doing so:
(c) The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser included offense.
¶2Ark. Code Ann. § 5-1-110(c) (Repl. 1997); see also State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995). Indeed, in Jones this court took a state appeal and declared error where the trial court refused to give instructions on lesser included offenses when there was evidence that justified doing so.
¶3The majority concludes that this issue turns on its facts and, thus, does not meet the requirements of Ark. R. App. P. — Crim. 3. But that misses the point. The issue respecting the uniform administration of criminal law is whether those instructions are required to be given, assuming the requisite evidence exists for giving them.
¶4The fallacy in the majority’s theory is that this issue raised by the State can never be addressed because there will always have to be an initial “factual” determination by the judge of whether a rational basis exists for the instructions on lesser included offenses. That position effectively precludes the State from ever having this thorny legal issue resolved.
¶5I would reach the merits of the issue raised, and for that reason, I respectfully dissent.