Massa, J.
This is the latest appeal from the prosecution of John Larkin for the 2012 death of his wife, Stacey. Charged with voluntary manslaughter, Larkin was convicted of involuntary manslaughter as a lesser included offense. He raised four issues on appeal. The Court of Appeals reversed his conviction after finding the jury should not have been instructed on involuntary manslaughter. Because we conclude this instruction was proper under the circumstances and reject Larkin’s remaining arguments, we affirm.
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Larkin raises four issues: (1) whether the trial court appropriately instructed the jury on involuntary manslaughter; (2) whether the State presented sufficient evidence to overcome his self-defense claim; (3) whether the trial court erred by denying his most recent motion to dismiss; and (4) whether the trial court improperly considered the handgun as an aggravator. We discuss each issue and, in doing so, reject Larkin’s arguments.
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During a criminal trial, either party can request a jury instruction on a lesser included offense. Webb v. State, 963 N.E.2d 1103, 1108 (Ind. 2012). When this occurs, the court must engage in the analysis we set forth in Wright v. State, 658 N.E.2d 563, 566–67 (Ind. 1995). First, the court must determine whether the lesser offense is inherently or factually included in the charged offense. Id. If it is either, the court must then determine whether “a serious evidentiary dispute” exists between the elements that distinguish the offenses. Id. at 567. In other words, there must be sufficient evidence for the jury to find the defendant committed the lesser offense but not the charged offense. Id. If a dispute exists, the court must give the instruction. Id. When the State makes the request, however, the defendant must have been on fair notice that he could have been convicted of the offense. Young, 30 N.E.3d at 725. Here, we find that involuntary manslaughter was a factually included lesser offense, there was a serious evidentiary dispute, and Larkin had fair notice.
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A lesser offense can be either inherently or factually included in the charged offense. Wright, 658 N.E.2d at 566–67. Here, both parties correctly recognize that involuntary manslaughter is not an inherently included lesser offense of voluntary manslaughter (or murder, for that matter). However, it may be a factually included lesser offense if the charging document alleged all of its elements. Id. at 567.
The information alleged that Larkin knowingly or intentionally killed Stacey with a handgun. The State sought the involuntary manslaughter instruction on the basis of a battery…Here, by alleging Larkin knowingly or intentionally killed Stacey with a handgun, the information alleged that he committed a battery against her. Cf. Champlain v. State, 681 N.E.2d 696, 702 (Ind. 1997) (concluding the information did not allege a battery when it merely stated the defendant knowingly killed the victim). Thus, involuntary manslaughter based on a battery was a factually included lesser offense.
The trial court must instruct the jury on the lesser included offense only if there is a serious evidentiary dispute on the elements that distinguish it from the charged offense. Wright, 658 N.E.2d at 567. Voluntary manslaughter requires an intentional or knowing killing in sudden heat, I.C. § 35-42-1-3(a)(1), while involuntary manslaughter only requires a battery that “incidental[ly]” kills the victim, Ingram v. State, 547 N.E.2d 823, 831 (Ind. 1989); I.C. § 35-42-1-4(c)(3).
Here, there was a serious evidentiary dispute. During his interview, Larkin stated that he only intended to push Stacey with the gun. If the jury believed him, then it could (as it did) convict him of involuntary manslaughter. See Wright, 658 N.E.2d at 567. But he also mentioned the heated verbal and physical confrontation between him and Stacey just before she was shot, his finger’s placement on the trigger at one point, and the serious marital issues between them. Larkin’s witnesses also testified about those issues. From this evidence, the jury could reasonably infer Larkin intentionally or knowingly killed Stacey while under sudden heat. Because there was sufficient evidence to support a conviction of either offense, there was no abuse of discretion.
With the Wright analysis satisfied, we turn to the constitutional analysis of fair notice and conclude that Larkin was not deprived of it.
Due process entitles a defendant to limit his defense to the charging instrument’s allegations. Young, 30 N.E.3d at 723, 725. This means he must have fair notice of the offenses of which he may be convicted. Id. at 725. Without fair notice, the trial court cannot instruct the jury on a lesser included offense, regardless of the Wright analysis. Id.
By alleging Larkin killed Stacey with a handgun, the information referenced—and provided notice of—“a battery that could have been a basis for an involuntary manslaughter conviction.” Norris v. State, 943 N.E.2d 362, 369 (Ind. Ct. App. 2011), trans. denied; cf. Champlain, 681 N.E.2d at 702. The wrinkle here arises from the State’s argument at closing that Larkin committed the necessary battery by pushing Stacey. Understandably, the allegation in the information—killing with a handgun—invokes a shooting, not a pushing. But here, Larkin stated during his pre-charge interview that he intentionally pushed Stacey with the handgun, which resulted in its second discharge. Because pushing someone with a loaded handgun is, at a minimum, a rude touching, Larkin admitted to committing a battery against Stacey. And that battery resulted in her death. At trial, the State simply used Larkin’s admission against him.
Larkin’s reliance on Young to allege a lack of fair notice is ultimately unavailing. There, the defendants were charged with murder for a shooting but convicted of attempted aggravated battery for a beating. Young, 30 N.E.3d at 721–22. While both the shooting and beating involved a battery, they were accomplished by completely different means. Id. at 725. Here, the voluntary manslaughter charge and involuntary manslaughter conviction were both based on the same means: the handgun.
The State charged Larkin following his interview and could have foreclosed its pushing argument. See id. But it did not. We cannot say Larkin was deprived of fair notice when the information alleged a battery and Larkin himself alerted the State to a possible theory of the case that it ultimately argued at trial.
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Because we reject all of Larkin’s arguments, we affirm the judgment of the trial court.
Rush, C.J., and Slaughter and Goff, JJ., concur.
David, J., dissents with separate opinion.
David, J., dissenting.
I respectfully dissent to the majority opinion. I do not believe that the trial court appropriately instructed the jury on involuntary manslaughter given the facts and circumstances here. I would deny transfer and let the Court of Appeals opinion stand.
I do not agree with the majority’s analysis about battery being factually included in the offense here, given the charging information and the facts and circumstances here. While battery may be included where there is a murder by handgun, I’m not sure that’s always the case.
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The State had over six years within which it could have amended the charging information to include an involuntary manslaughter charge against Larkin or mention some form of battery, but it did not do so. Then during trial and just minutes before final instructions and closing arguments, the State proffered its jury instruction on involuntary manslaughter based on a battery, to which Larkin objected. I agree with Larkin that this does not give his counsel adequate time to prepare a defense. The act of pushing his wife with a handgun and pulling a trigger are separate and distinct and occurred at different times during Larkin’s confrontation with his wife. These acts have distinct legal consequences and defenses.
I do not believe that the State should be able to seek a lesser included instruction mid trial once it realizes things aren’t going well or use a vague charging information to ambush a defendant. I fear the precedent the majority opinion sets will open the door to prosecutors trying to slip in other “lesser included” charges at the last minute. If the State wants to be able to seek a lesser included conviction based on involuntary manslaughter, it should clearly and plainly allege a battery in the charging information.
Accordingly, I respectfully dissent.