David, J.
A jury instruction setting forth the elements of attempted murder must inform the jury that the State must prove beyond a reasonable doubt that the defendant, with specific intent to kill the victim, engaged in conduct constituting a substantial step toward such killing. Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991). Similarly, when attempted murder is premised on accomplice liability, the jury is required to be instructed that the State must prove beyond a reasonable doubt that the defendant acted with specific intent to kill. Hopkins v. State, 759 N.E.2d 633, 637 (Ind. 2001) (citing Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000)). But in this case, although the trial court properly instructed Ruben Rosales’s jury on the elements of attempted murder, it failed to inform them that the State had to establish beyond a reasonable doubt that Rosales acted with specific intent to kill when he knowingly or intentionally aided, induced, or caused another person to attempt murder. This error was compounded during closing arguments when the State repeatedly insisted that specific intent to kill was not required for accomplice liability to attempted murder. Subsequently, the jury found Rosales guilty of attempted murder, but the general verdict form made it impossible to determine whether direct or accomplice liability formed the basis of their collective decision.
On appeal, Rosales argues that the trial court committed fundamental error by giving an instruction permitting the jury to convict him of attempted murder as an accomplice without the specific intent to kill. Our careful review of our case law leads us to conclude that under the circumstances of this case Rosales is correct.
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The State then charged Rosales with class A felony attempted murder and class D felony criminal gang participation. [Footnote omitted.] At his jury trial and during final instructions, the trial court instructed the jury on attempted murder: “the crime of attempted murder is defined as follows: a person attempts to commit a murder when, acting with the specific intent to kill another person, he engages in conduct that constitutes a substantial step toward kill[ing] that person.” (Tr. at 557.) Though Rosales was not charged as an accomplice to attempted murder and his attempted murder charge was not explicitly premised on a theory of accomplice liability, the trial court also instructed the jury on accomplice liability as follows: “[a] person who knowingly or intentionally aids, induces or causes another person to commit an offense commits that offense . . . [a]n accomplice is liable for the acts of the principal which, even if not a part of their original plan, are probable and natural consequences thereof.” (Tr. at 563.)
During closing arguments, the State argued both theories of liability. As we discuss in detail below, the State repeatedly relied on the incorrect accomplice liability instruction. For example, the State argued that it “only has to prove that one person intended for death to occur.” (Tr. at 518.) Additionally, the verdict form did not distinguish between Rosales’s potential direct liability or accomplice liability for the attempted murder of Torres.
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But our case law only addresses either a defendant’s direct liability or accomplice liability for attempted murder as the sole theory of liability. [Footnote omitted.] Here, in addition to instructing the jury (correctly) on the elements of attempted murder under a theory of direct liability, the trial court gave an accomplice liability instruction that, under Hopkins, failed to set forth that an accomplice must have the specific intent to kill when he or she knowingly or intentionally aids, induces, or causes another to attempt to commit murder. And because of the general verdict form, we do not know the theory of liability under which the jury convicted Rosales of attempted murder. We must now determine whether this improper accomplice liability instruction constituted fundamental error under the circumstances of this case.
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However, we do not agree that the incorrect accomplice liability instruction was “mere surplusage” or an unnecessary extra. To the contrary, accomplice liability was a distinct basis for the jury to convict Rosales of attempted murder. And although the trial court did correctly instruct the jury on direct liability for attempted murder, here the jury was not instructed as to all the elements necessary to properly convict Rosales of attempted murder under an accomplice liability theory. Because we have no way of discerning which theory of liability the jury used to find Rosales guilty of attempted murder, “it very much does matter in this case” how the jury was instructed on accomplice liability, as Judge Crone stated. Rosales, 3 N.E.3d at 1020.
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Here, we find that the inaccurate accomplice liability instruction was harmful enough to constitute fundamental error because the State’s closing arguments repeatedly told the jury that specific intent to kill was not required for accomplice liability. In its principal argument, which barely spans ten pages, the State told the jury that “you don’t have to concern yourselves with who had the bat” (Tr. at 514), that whether Rosales or Donovan Ball “swung that bat . . . doesn’t matter under the law” (Tr. at 518), and that—directly contrary to Hopkins—“the State only has to prove that one person intended for death to occur.” (Tr. at 518.)
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To be sure, there were also ample reasons for the jury to conclude that Rosales attacked Torres with the specific intent to kill him, so if the State had not repeatedly misstated the law we likely would have found an insufficient likelihood of prejudice to Rosales from the instruction. But the State’s repeated insistence that Rosales’s specific intent to kill did not matter, coupled with the inaccurate jury instruction on accomplice liability, is enough to make a fair trial impossible and constitute fundamental error. We therefore reverse Rosales’s conviction for attempted murder and remand this case to the trial court for a new trial.
Nevertheless, going forward, when an individual is tried for attempted murder as an accomplice, we recommend that Pattern Jury Instruction 2.11(a) be given. This instruction—titled “Aiding, Inducing or Causing Attempted Murder”—instructs the jury, among other things, that the State must prove beyond a reasonable doubt that the defendant acted with the specific intent to kill when he or she knowingly or intentionally aided, induced, or caused another person to engage in conduct constituting a substantial step toward attempting to murder another person. Consistent with our case law, this instruction informs the jury of the State’s burden to prove beyond a reasonable doubt all the elements of attempted murder under an accomplice liability theory—especially the defendant’s specific intent to kill—in order to convict the defendant. And when the defendant is tried under both direct and accomplice theories of liability for attempted murder, this instruction becomes crucial to safeguarding against the error we found in this case.
Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.