Brown, J.
John B. Larkin appeals his conviction and sentence for involuntary manslaughter, raising several issues. We reverse
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We first address whether the trial court erred in instructing the jury on involuntary manslaughter. A trial court must engage in a three-step analysis when determining whether to instruct a jury on a lesser included offense of the crime charged. Isom v. State, 31 N.E.3d 469, 485 (Ind. 2015) (citing Wright v. State, 658 N.E.2d 563, 566-567 (Ind. 1995)). First, the court must consider whether the alleged lesser included offense is an inherently included offense to the principal charge. Id. If it is not, then the court must decide whether the alleged lesser included offense is a factually included offense to the principal charge. Id. Finally, if the alleged lesser included offense is either an inherently or factually included offense to the principal charge, then the court must determine if there is a serious evidentiary dispute regarding the element that distinguishes the lesser offense from the principal charge. Id. If such a dispute
is present, the court must give the instruction on the lesser included offense. Id.
Larkin maintains the trial court should not have instructed the jury on involuntary manslaughter. He argues involuntary manslaughter was neither an inherently nor a factually included lesser offense of the charged voluntary manslaughter offense. He points out that the charging information made no reference to a battery accomplishing the killing and that it tracked the voluntary manslaughter statute. He further argues the involuntary manslaughter instruction denied him his right to fair notice of the charges against him. He argues his defense to the shooting was that it was an accident in the course of self-defense and that, minutes before closing argument, he was told he was defending against a battery as well as against the shooting, and he observes the prosecutor argued in closing that he was guilty of involuntary manslaughter because he pushed Stacey.
The State argues that, “[w]hen a charging information alleges the use of a handgun, it has alleged a touching that satisfies the elements of battery so that involuntary manslaughter would be a factually-included offense of murder.” Appellee’s Brief at 16-17. It also argues the involuntary manslaughter instruction was supported by the evidence and asserts: “Here, there were two distinct acts from which the jury could find [Larkin] killed Stacey while committing battery—the first bullet strike and the pushing with the muzzle of the gun that resulted in the second bullet strike.” Id. at 17.
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While involuntary manslaughter is not an inherently included lesser offense of murder, it may be a “factually included” lesser offense, but only where “the charging instrument alleges that a battery accomplished the killing.” Wilson, 765 N.E.2d at 1271; see Wright, 658 N.E.2d at 567 (observing, “[i]f the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense, then the alleged lesser included offense is factually included in the crime charged”); Sandilla v. State, 603 N.E.2d 1384, 1387 (Ind. Ct. App. 1992) (noting the alleged battery must have caused the victim’s death to support the giving of an involuntary manslaughter instruction), trans. denied.
In this case, Stacey died as a result of gunshot wounds on December 11, 2012… While a person may shoot another person with an intent to batter rather than with an intent to kill, see Champlain, 681 N.E.2d at 702 (observing a shooting “can in some situations be classified as a battery”) we conclude the charging instrument here did not make such an allegation. The State does not assert that it advanced an argument that Larkin intended to commit a battery by shooting Stacey. Rather, in requesting the involuntary manslaughter instruction, the prosecutor argued Larkin pushed Stacey and that was a battery. See Transcript Volume V at 233 (prosecutor arguing: “I think this is factually lesser-included certainly from the evidence. There isn’t any question that the Defendant, as he admits, pushed the victim into a corner and surely that is touching in a rude, insolent, or angry manner.”). Additionally, the prosecutor argued to the jury in closing that Larkin intended to commit a battery by pushing Stacey. See id. at 246 (prosecutor arguing “if . . . you were to believe that he . . . did intend to push her, . . . then . . . he would be guilty of involuntary manslaughter”) (emphasis added); Transcript Volume VI at 52 (prosecutor arguing “[h]e admitted that he pushed her”) (emphasis added). Nor can we conclude the charging instrument made an allegation that Larkin committed battery by pushing Stacey. Stacey died as a result of her gunshot wounds. The charging information referred to a handgun. It did not allege all of the elements of a battery by pushing. We decline to conclude that the mere assertion that the charged offense was committed by means of a handgun, without more, automatically means the information also asserted a battery. The charging instrument did not assert a battery or incidental killing.
Because involuntary manslaughter was not an inherently or factually included lesser offense of the charged crime, the jury should not have received an involuntary manslaughter instruction. See Champlain, 681 N.E.2d at 702 (holding “[b]ecause the information did not assert a battery, involuntary manslaughter in this case was not a factually included lesser offense” and the trial court did not err in refusing to give the instruction).
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Moreover, the prosecutor did not request the involuntary manslaughter instruction until after the evidence was closed and just prior to closing argument. In every criminal case, the accused is entitled to clear notice of the charge against which he must defend at trial. Wright, 658 N.E.2d at 565 (citing Ind. Const. art 1, § 13). Defendants are entitled to limit their defense to the crimes charged. Young v. State, 30 N.E.3d 719, 720 (Ind. 2015). If there is reasonable doubt as to what the charge includes, such doubt must be resolved in favor of the defendant. Id. at 723.
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We conclude there is, at a minimum, reasonable doubt as to whether the State’s charging instrument provided Larkin with fair notice of the charge of which he was eventually convicted. We are constrained to resolve any such doubt in Larkin’s favor. See Young, 30 N.E.3d at 723. We conclude that the trial court erred in instructing the jury on involuntary manslaughter. See id. at 720 (holding attempted aggravated battery by beating “was not just a lesser offense” than the charged murder by shooting but was “a completely different offense” based on different “means used” than alleged in the informations, which deprived the defendants of fair notice to extend their defense to the lesser charge, reversing the defendants’ convictions, and remanding for entry of judgments of acquittal).
For the foregoing reasons, we reverse Larkin’s conviction for involuntary manslaughter and remand with instructions to enter a judgment of acquittal and order that he be discharged.
Reversed and remanded.
May, J., and Tavitas, J., concur.