Rush, C.J.
The State prosecuted three co-defendants on identical charges in the same trial. In a companion case, we reversed the convictions of two of those three co-defendants—Billy Young and Marquise Lee—and remanded to the trial court with instructions to enter judgments of acquittal. Young v. State, 30 N.E.3d 719 (Ind. 2015). We now apply that holding to the third co-defendant—Latoya Lee––whose case is indistinguishable except that she belatedly filed her petition to transfer. [Footnote omitted.]
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On September 7, 2012, Latoya Lee (accompanied by her sixteen-year-old son Marquise Lee, her twenty-three-year-old cousin Billy Young, and a male with a tattoo on his face) confronted Ramon Gude outside his apartment in retaliation for Gude having struck Latoya in the face during an argument two days earlier. Marquise and Gude began fistfighting until Gude retreated to his apartment, where his girlfriend Tiara Richardson attempted to pull him inside. Before Gude could close the door, all of Latoya’s companions rushed in while Latoya remained outside telling Richardson to “get out of the way.” Young handed an unloaded handgun to Marquise, who never loaded or pointed it. Then while Young continued the fight, the tattooed man fatally shot Gude—surprising the other three attackers. All four ran away, but Richardson identified both Lees and later identified Young from a photo array, though the tattooed man remained unidentified at trial.
The State charged all three Defendants with murder, based expressly on the shooting, and with conspiracy to commit murder, alleging the murder itself as the overt act in furtherance of the conspiracy. The State brought no other charges, battery or otherwise. All three Defendants waived their right to a jury trial and consented to a joint bench trial.
After a two-day bench trial … , the … trial court … dismissed both charges—finding reasonable doubt about whether the shooting was planned, as opposed to simply “tak[ing] some friends and family over there to pound on [Gude].” But without objection from the Defendants, the court then invited arguments on lesser included battery offenses based on a plan to beat Gude—and after hearing closing arguments, it returned a verdict of attempted aggravated battery as a lesser included offense of the murder charge, with the fistfight as the “substantial step” necessary for the attempt. …
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Our analysis of lesser included offenses and fair notice in Young applies with full force here, and we need not repeat it in detail. It is enough to summarize that defendants must have “clear notice of the charge or charges against which the State summons [them] to defend,” Wright [v. State], 658 N.E.2d 563, 565 (Ind. 1995), in order to know what they do or do not need to defend against. [Citations omitted.] Adequate notice “is vital to both sides of a criminal case,” and “[d]ue process will brook no confusion on the subject.” [Citations omitted.]
… And like Young, we conclude that the complete factual divergence here between the “means used” as alleged in the murder charge (shooting) and the “means used” on which the court found attempted aggravated battery (beating) deprived Latoya of “fair notice” of the charge of which she was eventually convicted and the corresponding right “to limit [her] defense to those matters with which [she] stands accused.” [Citation omitted.]
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… [A]s we held in Young, the error here was fundamental because it placed the Defendants in an unworkable Catch-22. Id. at 727–28. When the State specifically relied on shooting as the “means used” to support the murder charge, Latoya and her co-defendants relied on it—as they had the right to do [citation omitted]—and made binding judicial admissions about the beating in order to frame their defense solely in terms of the charged shooting, to the exclusion of any other means….
Once the Defendants had detrimentally relied on the State’s charged “means used” by admitting their intent to beat Gude, it was too late for the State to reverse course and assert the same “means used” it disclaimed moments earlier. Doing so placed the Defendants in a dilemma 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. The error was therefore fundamental and may be reviewed despite the lack of trial-level objection.
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Having already exercised our discretion to permit Latoya to file a belated petition to transfer, we see no reason to treat her differently than Young and Marquise, who now stand acquitted as a result of our decision in Young. We therefore grant transfer, reverse Latoya’s conviction, and remand to the trial court with instructions to enter a judgment of acquittal.
Dickson, Rucker, David, and Massa, JJ., concur.