¶1dissenting in part and concurring in part.
¶2I dissent from that portion of the opinion holding that the evidence was sufficient to justify a finding that appellant was a dangerous offender for the purpose of enhancing his punishment above that set by the jury of 7 and 10 years, respectively, for attempted rape and burglary, to 10 and 14 years imprisonment.
¶3The majority opinion rules that there was sufficient evidence to support the enhancement of punishment. The holding is that “In ‘grabbing’, ‘squeezing’, and ‘choking’ (the words of the victim herself) the victim’s throat; and holding his fist before her face in a menacing manner; and in undertaking, in the manner described above, to force intercourse upon her, the defendant ‘knowingly threatened to inflict serious physical injury’ upon her, within the meaning of the quoted statute.” [§ 558.016, RSMo (L.1977, S.B. No. 60, p. 662, § 1, eff. Jan. 1,1979.] The majority opinion touches not upon how these described acts could cause “serious permanent disfigurement of protracted loss or impairment of the function of any bodily member or organ.” [Italics added.] § 556.061(24), RSMo 1978. There is no evidence that the grabbing, squeezing or choking caused any impairment of the victim’s bodily functions so as to amount to a protracted loss thereof.
¶4Some legitimate analogies exist between “serious physical injury” and the concept of “great bodily injury” as contained in former criminal statutes, assault with intent to kill, § 559.180, RSMo 1959, and felonious assault, § 559.190, RSMo 1959. [Note that the assault statutes, § 565.050, RSMo 1978, et seq., now also use the words “serious physical injury”.] In State v. Seemiller, 558 S.W.2d 212 (Mo.App.1977), the appellant actually beat the victim with his fists causing a bloody condition of her face and clothing and a hysterical condition, prompting the court to say at page 216[5-9], “The nature and extent of the injuries inflicted from an assault is a circumstance relevant and material to the issue of intent”, and “An assault with intent to do great bodily harm may be committed by use of the fists.” In the there cited case of State v. Himmelmann, 399 S.W.2d 58 (Mo.1966), and cases cited, there were aggravated assaults with the fists causing serious injuries and hospitalization. So also in State v. Townsel, 506 S.W.2d 59 (Mo.App.1974); State v. Mathis, 427 S.W.2d 450, 452[1] (Mo.1968); State v. Gardner, 522 S.W.2d 323 (Mo.App.1975); State v. Selle, 367 S.W.2d 522 (Mo.1963); and State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660 (1953), where the victim was struck and choked but she suffered no serious injury, the court saying that if a police officer had not interfered, the appellant might have continued his assault and choking until she died. In all of these cases, quite apparently a battery was required to justify conviction of assault with intent to do great bodily harm — equated . with causing serious physical injury. The mere raising of a fist would not suffice, nor, as here, would “grabbing”, “squeezing” and “choking” suffice to constitute a threat to inflict serious physical injury of a protracted nature in the absence of any evidence tending to show that the victim suffered any discomfort, bruises, loss of breath, or impairment of any bodily member or organ. Put another way, a threat to strike with the fists is an empty thing unless there is evidence that if the threat is carried out, it is certain to produce serious physical injury. There is yet another aspect to appellant’s acts in raising his fist and in grabbing, squeezing and choking the victim. The majority opinion chooses to ignore the definition of “knowingly” set forth in § 562.016 3: “A person ‘acts knowingly’, or with knowledge. (1) With respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist; or (2) With respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result.” [Italics added.] As *775noted above, there is no evidence of any degree of severity of appellant’s acts which would charge him with knowledge that they would result in serious physical injury of a protracted nature.
¶5Although the majority opinion properly rejects the state’s position that appellant was expected to know that intercourse with the victim would create a risk of serious infection, creating a substantial risk both to the fetus and to the mother, a matter for expert testimony, the majority opinion goes on to consider it as “showing a certain state of mind of indifference to consequences which, like the upraised fist, colors his actions in threatening the victim.” This is an improper consideration not only because it goes beyond the statutory definition of “knowingly”, supra, but it injects an element of reckless action which is nowhere to be found in the statutes governing dangerous offenders. Consider, then, whether one found guilty of manslaughter, reckless and wanton conduct in driving an automobile, could be found to be a dangerous offender and his sentence thus enhanced which could flow from the injection of the majority opinion of the new element of indifference to consequences. The foregoing evidence is, in my opinion, totally insufficient to support the statutory definition of serious physical injury.
¶6I concur in the balance of the majority opinion but I would reverse the judgment and remand the case to the trial court for resentencing of appellant in accordance with the jury’s verdicts without enhancement or imposition of an extended term, with a determination in appellant’s presence of whether the sentences shall run concurrently or consecutively.