Najam, J.
Marquell M. Jackson appeals his convictions and sentence, following a jury trial, for burglary, as a Level 1 felony; attempted robbery, as a Level 2 felony; four counts of attempted robbery, as Level 3 felonies; two counts of aggravated battery, as Level 3 felonies; and for being found to have been a member of a criminal gang, a sentencing enhancement. Jackson raises seven issues for our review, but we address only the following five issues:
I. Whether the trial court committed fundamental error when it permitted the State to amend the charge for the criminal gang enhancement such that the charge no longer stated a cognizable offense.
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We hold that the trial court committed fundamental error when it permitted the State to amend the charge on the criminal gang enhancement such that the charge no longer stated an offense under Indiana law. We also hold that two of Jackson’s convictions violate Indiana’s prohibitions against double jeopardy because they were enhanced by the same bodily injury as Jackson’s conviction for burglary, as a Level 1 felony. In light of those holdings, we reverse Jackson’s criminal gang enhancement and remand with instructions for the trial court to vacate that enhancement. We also reverse the two of Jackson’s convictions that are based on the same bodily injury as his conviction for burglary, as a Level 1 felony, and we remand with instructions for the court to enter judgment of conviction on lesser-included offenses on those counts. And we instruct the court to resentence Jackson in accordance with this opinion. On the remaining issues, we affirm.
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The State’s original charge of the criminal gang enhancement tracked the statutory language and stated in relevant part that, “on October 26, 2015, [Jackson] knowingly or intentionally was a member of a criminal gang while committing the underlying offense.” Appellant’s App. Vol. II at 56; see I.C. § 35-50-2-15(b)(1). However, nearly seven months later and three days before Jackson’s trial, the State amended that language to instead allege that Jackson “was a known member of a criminal gang[] while committing the underlying felony offense.” Id. at 97.
The language of the amended charge does not track and is not consistent with the language of the statute. See I.C. § 35-50-2-15(b)(1). In particular, the amended charge omits a material element from the statute, namely, the mens rea. And the amended charge adds an element that is not within the statute, namely, that Jackson was “a known member” of a criminal gang. See I.C. § 35-50-2-15(b)(1). In particular, the amended charge omits a material element from the statute, namely, the mens rea. And the amended charge adds an element that is not within the statute, namely, that Jackson was “a known member” of a criminal gang. Appellant’s App. Vol. II at 97.
As a result of those changes, the amended charge is substantially different from the statutory language and carries a wholly different meaning. …
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Rather, while the amended charge here states the correct name for the charge and provides the correct legal citation, as explained above in substance the charge alleges an act that does not constitute a criminal gang enhancement as defined in the Indiana Code….We have also repeatedly concluded that the complete omission of a material element of an offense, such as the mens rea, is fundamental error when that omission fails to give the defendant notice of the elements of the offense and makes him unable to adequately prepare his defense…Here, the substance of the charging information failed to state an offense and completely omitted the mens rea. Thus, with its amended charge, the State put Jackson on notice that he was being charged with a nonexistent offense.
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In sum, the amended charge was a misdirection. The trial court committed fundamental error when it permitted the State to amend the criminal gang enhancement allegation to charge the defendant with being “a known member” of a criminal gang. In its operation and effect, the amended charge poisoned the well as it skewed the evidence and argument and caused the defendant to be tried for and defend against an offense that does not exist under the statute. We reverse Jackson’s enhancement and remand with instructions that the court vacate the enhancement and the sentence imposed on it.
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Affirmed in part, reversed in part, and remanded with instructions.
Kirsch, J., and Brown, J., concur.