Rush, C.J.
Defendants have a Due Process right to fair notice of the charge or charges against them, and they are entitled to limit their defense to those matters. The “inherent” and “factual” inclusion tests we established in Wright v. State, 658 N.E.2d 563, 566–67 (Ind. 1995), are a necessary part of determining whether a defendant has fair notice of a lesser included offense—and in the context the question most commonly arises, no further analysis beyond Wright is necessary. But as the unusual facts of these cases illustrate, the ultimate question of fair notice can be broader than the particular issues Wright’s tests address.
And here, fair notice was lacking. Defendants were charged with murder as accomplices in a shooting. At their bench trial, the court found that they intended a group beating of the victim, but that there was insufficient evidence that they knew a member of their group would shoot him. The trial court thus dismissed the murder charge, but convicted Defendants instead of attempted aggravated battery for planning the beating.
Under these circumstances, however, attempted aggravated battery by beating was not just a lesser offense than the charged murder by shooting—it was a completely different offense, based on a completely different “means used” than alleged in the charging informations. This deprived Defendants of fair notice to extend their defense to that very different lesser charge and constituted fundamental error. We therefore grant transfer in both cases by separate orders and reverse both Defendants’ convictions. [Footnote omitted.]
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Lesser included offenses lie at the intersection of two long-settled principles. On the one hand, “[i]t is ancient doctrine of both the common law and of our Constitution that a defendant cannot be held to answer a charge not contained in the indictment brought against him.” . . . On the other hand, common law has long “permitted [a jury] to find the defendant guilty of any lesser offense necessarily included in the offense charged,” without being strictly limited to the express written charges. Beck v. Alabama, 447 U.S. 625, 633 & n.9 (1980) (citing, inter alia, 2 M. Hale, Pleas of the Crown 301–02 (1736)).
The question, then, is whether the defendant has “clear notice of the charge or charges against which the State summons him to defend,” Wright, 658 N.E.2d at 565, in order to know what he does—and just as importantly, does not—need to defend against. . . . Determining whether a charging information fairly encompasses a particular lesser offense is vital to both sides of a criminal case because it affects “both how prosecutors draft indictments and informations and what notice defendants . . . will have of the charges brought against them.” Wright, 658 N.E.2d at 565. Simply put, “Due process will brook no confusion on the subject.” Id.
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In Wright, we addressed the most common context for included-offense questions—a defendant’s request to instruct a jury on a lesser offense. There, the defendant was charged with murder, but after the jury began deliberating on that charge, it asked for instructions on reckless homicide as well. Id. at 570–71. Defense counsel argued in favor of giving the requested instruction, asserting “that the trial court had no choice” but to give it. Id. at 571. The trial court gave the instruction, and the jury convicted defendant of the lesser charge. Id. at 571–72. The Court of Appeals reversed, reasoning that the lesser conviction violated due process, since the State had foreclosed any lesser offense by closely tracking the statutory definition of murder in the charging instrument. Id. at 566.
On transfer, we rejected the misconception that echoing the statutory elements of murder could preclude reckless homicide as a lesser included offense. First, we held that a lesser offense is “inherently included” when it “may be established ‘by proof of the same material elements or less than all the material elements’ defining the crime charged,” or if “the only feature distinguishing [the two offenses] is that a lesser culpability is required to establish the commission of the lesser offense.” Id. at 566 (quoting I.C. § 35-41-1-16 (1993) (repealed and recodified at I.C. § 35-31.5-2-168) (2012)). Second, we recognized that even when a lesser offense is not inherently included, it is “factually included” if “the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense.” Id. at 567. [Footnote omitted.] Explaining why the distinction matters, we said that “the wording of a charging instrument never forecloses or precludes an instruction on an inherently lesser included offense,” id. at 567—and a factually-included offense may be foreclosed only by omitting the necessary factual allegations from the charging instrument, id. at 570. On that basis, we affirmed the lesser conviction because reckless homicide is inherently included in murder, and thus was not foreclosed by how the charge was drafted. Id. at 567, 572.
In a subtle but important way, though, this case inverts the question presented in Wright. There, the only question for us was whether reckless homicide actually was included in the murder charge, and we held it was. Id. at 567. Fair notice was not at issue because the defendant was the proponent of the lesser charge, see id. at 571–72, and thus necessarily had fair notice of it. Here, attempted aggravated battery is inherently included in murder, as both Court of Appeals panels recognized. . . .Instead, we see these unusual facts as presenting the opposite side of Wright’s question: Even though the elements of attempted aggravated battery are inherently included in murder, did charging Defendants only with murder by shooting deprive them of “fair notice” to also defend against the lesser charge of attempted aggravated battery by beating—a different and unrelated “means used”?
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Indeed, failure to prove Defendants’ knowledge of a shooting, as opposed to a mere fistfight, was precisely the basis for Defendants’ motion at the conclusion of the State’s case in chief for dismissal of both counts. As Lee’s counsel argued:
[Lee]’s clear intent when he came here was to fist fight with Ramon Gude and that’s exactly what he did. . . . [He] did not use that gun. . . . Certainly there is no evidence that he was going to use [the gun] to commit a more serious crime than just the fighting that had occurred. . . . In fact, there is clear indication that once this shooting happened, [Lee] and Billy Young were surprised. . . . Their actions were indicative that they did not expect that to happen. . . . If [Lee] wanted [Gude] dead he wouldn’t have fist fought him, he would have shot him right there. If Billy Young wanted him dead and this was the plan he wouldn’t have handed a gun away to someone, he would have shot him. . . . You heard direct evidence that [Lee] never pointed that weapon that was handed to him, he never used that weapon in any way. Billy Young handed away a weapon that he had.
. . . And in response, the State doubled down on its theory that Defendants specifically did not intend a fistfight and instead intended a shooting:
The idea that they went over there just to engage in some sort of fight is not supported by the evidence, Your Honor. They have Ramon Gude who is 5’2[”] in a corner behind the door, surrounded, 3 on 1. He is surrounded 3 on 1, he’s in the corner, he has his hands up, he’s trying to protect himself and he doesn’t have a scratch on his body. His teeth are fine, he has no broken ribs, he has no injuries. Why? Because they didn’t go over there to fight him. Those guys are the worst fighters in Indiana if[,] three of them against one 5’2[”] guy[,] they can’t leave one bruise on his body. But that’s why not [sic] they went over there. They went over there to shoot and kill him. And you know that because they brought two guns to the situation. They brought two guns to the incident. They had him cornered and they used the gun and they killed him because that’s what they intended to do.
Tr. 261. At that point, both sides had cast their dice. In reliance on the State limiting its theory to participating in a shooting as expressly charged, Defendants had made binding judicial admissions about the beating.
Letting the State argue that there was no intent for a mere fistfight—then, when its argument failed, reverse course and fall back on the “means used” it expressly disclaimed moments earlier—left Defendants in a dilemma no objection could have cured. As we have explained, the purpose of requiring an objection in this context (just as in the related context of the State amending charges to conform to the evidence presented at trial) is to set the stage for a continuance to let the defense revise its strategy to better meet the new charge. Miller v. State, 753 N.E.2d 1284, 1288 (Ind. 2001). Comparing this case with Miller illustrates why, in these unique circumstances, conviction on the lesser charge was fundamental error.
In Miller, the defendant robbed a bank and shot at police while fleeing. Id. at 1286. At a bench trial for attempted murder of the officers, the trial court instead found him guilty of criminal recklessness. Id. The defendant did not object at trial, and on appeal failed to provide a transcript sufficient for us to review the context in which the court’s decision was made. Id. at 1287. We held those failures would preclude appellate review because even if criminal recklessness were not factually included in the attempted murder charges (a matter we did not decide), the error would not have been fundamental. Id. at 1287–88 (citing Wright, 658 N.E.2d at 567–68). But in Miller, regardless of whether the lesser charges met the strict definition of “factually included,” they nevertheless stemmed from the same means used—“firing a handgun at and toward” the three victims, id. at 1286 n.7—as the attempted murder charges. The common factual thread running through both charges minimized any due process concern about the defendant’s “fair notice.”
Here, by contrast, fair notice of the lesser offense was so lacking as to establish fundamental error. The charges rested solely on the shooting, and were entirely silent about a beating. Then, apparently relying on that silence, see Garcia, 433 N.E.2d at 1209, defense counsel made prejudicial admissions about the (uncharged) beating as a defense against the charged shooting—indeed, winning acquittal on that charge. Only then did the State advance the beating as alternative grounds for a lesser included offense. But once those admissions were made in reliance on the charges, switching theories placed Defendants in a Catch-22 from which no objection and no continuance could have freed them—a fair trial on the alternative theory of attempted aggravated battery by beating had become impossible. We do not mean to suggest that this dilemma was a deliberate trap, but that was nevertheless its inescapable effect. And it amounted to a denial of basic due process that made a fair trial impossible. We therefore agree with Young that the error was fundamental and may be reviewed despite the lack of trial-level objection.
Dickson, Rucker, David, and Massa, JJ., concur.