A TTORNEY FOR A PPELLANT B ILLY Y OUNG

Erik K. Koselke Indianapolis, Indiana A TTORNEY FOR A PPELLANT M ARQUISE L EE Ellen M. O’Connor Marion County Public Defender Agency Indianapolis, Indiana A TTORNEY FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

__________________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 49 S 02 -1505- CR -2 75
B ILLY Y OUNG , Appellant ,
V

. S TATE OF I NDIANA , Appellee.

_________________________________ No. 49S02 -1505- CR -276
M ARQUISE L EE , Appellant ,
V

. S TATE OF I NDIANA , Appellee.

_________________________________ Appeal from the Marion Superior Court, No s. 49G05- 1209

- MR -62632 and - 65281

The Honorable Grant Hawkins, Judge

_________________________________ On Petition to Transfer from the Indiana Court of Appeals, Nos

. 49A02-1310- CR -868 and -869

_________________________________

May 14, 2015 Rush, Chief Justice.2

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 deter

mining whether a defendant has fair notice of a lesser included offense

— and in the context the question most com monly arise s , no further analysis beyond Wright is necessary
. B ut as the unusual facts of th e s e case s illu strate, the ultimate question of fair notice can be broader than the particula r issue s Wright ’s tests address

. And here, fair notice was lacking. Defendant s were charged with murder as accom plices in

a shooting

. A t their bench trial, the court found that they intended a group beating of the victim , but that there was in suf

ficient evidence that they knew a member of their group would shoot him

. The trial court th us dismissed the murder charge, but convicted Defendant s instead of at tempted aggra

vated battery for planning the beating.
Under these circumstances, however, attempted ag gra va ted battery by beating was not just a lesser offense than the charged murder by shooting

— it was a completely different offense, based

on a c ompletely different “means used” than alleged in the charging informations . This deprived Defendant s of fair notice to extend their d efense 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

. 1

Facts and Procedural History On September 5, 2012, Ramon Gude struck Latoya Lee in the face during an argument , and as she left, she threatened Gude that she would come back. T wo days later , she did, accom panied by her sixteen

- year
- old son Marquise Lee, 2 her twenty

- three

- year
- old cousin Billy Young, and a male with a tattoo on his face. Gude was outside w hen they arrived, and a fistfight quickly broke out between him and Lee

. Gude retreated to his apartment, where his girlfriend Tiara Richardson attempted to pull him insi de

.

1 This opinion addresses both cases but without formally consolidating them as Indiana Appellate Rule 38(B) would permit.
2 To distinguish the two Lees, w e will refer to Latoya Lee by her full name and to Marquise Lee by last name only.3

But before they could close the door, Lee , Young , and the third man (unidentified at the time of trial) rushed in , while Latoya Lee remained outside telling Richardson to “get out of the way.” Inside the apartment, t he brawl continued , and Young handed Lee a handgun and magazine loaded with ammunition. Lee fum bled with the two items

— but never loaded or pointed the gun

— while Young continued the fistfight. Then several shots rang out, and Gude collapsed. Richardson believed the unidentified man fi red the shots, and Lee and Young appeared surprised. The four attackers ran off, and Gude died of the gunshot wounds. Richardson promptly i dentified both Lees and later identified Young from a photo array.

T he State charged all three with just two counts

. The lead count was murder , based expressly on the shooting :

Latoya Lee, Marquise Lee and Billy Young, on or about September 7, 2012, did knowing ly kill another human being, namely: Ramon Gude, by shooting a deadly weapon, that is: a gun, at and against t he person of Ramon Gude, thereby inflicting mortal injuries upon Ramon Gude, causing Ramon Gude to die[.]
The other count was conspiracy to commit murder , alleging the murder itself as the overt act in fur ther ance of the conspiracy

. T h e 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 and after all evidence was presented, the three D efendants moved for involuntary dismissal for fa ilure of proof under Indiana Trial Rule 41(B). The trial court granted the motion and dismiss ed both charges , finding reasonable doubt about whether the shooting was planned

. B ut it invited arguments on lesser included battery offenses based on a plan to beat Gude :

As with many cases, especially one that relies on circumstantial evidence, you can put the puzzle pieces together a number of ways and come to a number of conclusions. In this case, a case can be made for simple battery, a case c an be made for murder, but both would be an extreme stretch. What makes sense here, and I think the State has proven beyond a reasonable doubt so far is that Ms. Lee was going to arrange for a beat down. And she was going to take some friends and family ov er there to pound on [Gude] . It is easy to imagine somebody going off the reservation, and it is easy to imagine somebody carr y ing out the plan to kill. I would instruct the jury that if they had [two] easily reached conclusions, they are conclusions4 that benefit the accused. So as to [C]ount 1 I’ll remove murder as a consideration. Then I’ll leave all the possible batteries on the table. As to [C]ount 2 the overt act alleged proving conspiracy is the murder itself. Having removed murder, I think I have to grant the motion to dismiss [C]ount 2.
Tr. 267

– 68 (emphasis added). None of the Defendants objected to that decision. The parties then made closing arguments about which forms of battery were supported by the evidence . The State advocated for aggravated battery as a Class B felony , based on inflicting injury that creates a substantial risk of death or causes serious permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ. Ind. Code § 35

- 42

- 2

- 1.5 (1)

– (2) (2012) . Defen dants, by contrast, argued that because Gude’s body showed no signs of injury from the fistfight, the evidence supported only the basic battery offense as a Class B misdemeanor, based

on touching another person “in a rude, insolent, or angry manner.” I.C. § 35

- 42

- 2

- 1 (a)

. 3 The trial court, apparently recognizing that the fistfight standing alone had not risked death or caused serious injury, instead returned a verdict of attempted aggravated battery as a lesser included offense to the murder charge , with the fistfight as the “substantial step” necessary for the attempt. It sentenced th e Defendants to fifteen years.

Lee appealed , arguing insufficient evidence to support his convictio n
. Young ap pea led on the same grounds, but he also challenged whether attempted aggravated battery was properly a lesser included offense of murder under the circumstances. Two panels of the Court of Appeals reached opposite conclusions, reversing Young’s conviction while leaving Lee’s conviction and fifteen

year sentence intact. In Young’s appeal, the court recognized Wright as controlling authority for determining whether a lesser offense is either “inherently ” or “fac t ually” included in a charge. Young v. State , 11 N.E.3d 964, 967 (Ind. Ct. App. 2014), trans. granted , vacated . But the court reasoned that Wright also implicitly requires lesser included offenses to be based on the same facts alleged in the charging information, so that defendants can limit their defense to the matters of which they stand accused. Id. at 968. On that basis, it concluded that Young did not have fair notice that his defense for murder by shooting would also extend to the “entir ely diffe rent” offense of attempted aggrav ated battery by “pound[ing] on” or “beat[ing]” Gude. Id. at 968

– 69. Instead, the court reasoned that the factual

3 This provision is now codified as Indiana Code section 35

- 42

- 2

- 1(b)(1) (2014).5

shift effectively amen d ed the substance of the charging information, which is not permissible after trial com mences. Id. at 969 (citing I.C. § 35

- 34

- 1

- 5). And while the Court of Appeals “recognize[d] that no explicit objection was made” when the trial court announced the convictions for attempted aggra va ted battery, it concluded that “the unusual cir cumstances in this case” would establish fun

da men tal error and overcome any potential waiver. Id. at 967 n.5. The panel in Lee’s appeal, though , reached the opposite conclusion , rejecting his suffi ciency challenge in a memorandum decision. Lee v. State ( Lee I ) , No. 49A02

- 1310

- CR

- 869 (Ind. Ct. App. May 27, 2014) , trans. granted , vacated

. Lee petitioned for rehearing

— raising the included

- offense issue for the first time , relying on the published opinion in Young

. The panel denied rehearing, hold

ing that Lee had failed to preserve the issue for appeal by appropriate trial

- level objection or appellate argument and that the error , if any, was not “fundamental”

— on both points, expressly disagreeing with the Young panel. Lee v. State ( Lee II ), 15 N.E.3d 670, 674

– 77 (Ind. Ct. App. 2014) , trans. granted , vacated

. The State sought transfer in Young ’s appeal , and Lee sought transfer in his. 4 W e heard oral argument in Young and have now granted transfer in both cases by separate orders issued together with this opinion. And though we do not formally consolidate the two appeals as Indiana Appellate Rule 38(B) would permit, this opinion addresses both cases.

Discussion and Decision
I. Lesser Inclusion and Fair Notice Are Not Necessarily Coextensive.
Lesser inclu ded 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 defen dant
cannot be held to answer a charge not contained in the indictment brought against him.” Schmuck v. United States , 489 U.S. 705, 717

- 18 (1989) (citing, inter alia, Ex Parte Bain , 121 U.S. 1, 10 (1887)). On the other hand, common law has long “permitted [a jury] to find the defendant guilty of any lesser of fense necessarily included in t he 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)).

4 Latoya Lee did not seek transfer in her unsuccessful appeal of her conviction and sentenc e. Latoya Lee v. State , No. 49A02

- 1310

- CR

- 867 , 2014 WL 2587317 (Ind. Ct. App. June 10, 2014).6

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

. See , e.g. , Bruce v. State , 230 Ind

. 413, 420

– 21, 104 N.E.2d 129, 132 (1952) (“[T]he charge must be such that the de fen dant may know definitely what he has to meet, and that the court may know the crime intended to be charged. If there is reasonable doubt as to what the [charge] includes, such doubt must be resolved in favor of the [defendant].” (citation omitted) ); Garcia v. State , 433 N.E.2d 1207, 1209 (Ind. Ct. App. 1982) (“[T]he defendant is entitled to limit his defense to those matters with which he stands accused

. ”). Determining whether a charging information fairly en com pass es a particular lesser offense is vital to both sides of a criminal case because it affects “ both how prosecutors draft indictments and in for

mations and what notice defendants .

. . will have of the charges brought against them.” Wright , 658 N.E.2d at 565. Simply put , “ D ue process will brook no confus ion on the subject.” Id.

A. Wright Analyzed Lesser Inclusion; Fair Notice Was Not at Issue.
In Wright , we addressed the most common context for included

- offense questions

— a defen

dant’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, assert ing “that the trial court had no choice” but to give it. Id. at 571. The trial court gave the instruction, and t he jury convicted defendant of the lesser charge. Id. a t 571

– 72. T he 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 chargi ng instrument. Id. at 566.

On transfer , we rejected the misconception that echoing the statutory elements of murder could pre clude 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 distin guishing [the two offenses ] is that a lesser cul pa bility is required to establish the com mis sion of the lesser offense.” Id. at 566 (quoting I.C. § 35

- 41

- 1

- 16 (1993) (re pealed and re codified at I.C. § 35

- 31.5

- 2

- 168 ) ( 2012 ) )

. Second, we recognized that even when a lesser offense is not in her ently in clu ded, it is “ factually included” if “the charging instrument alleges that the means used to com mit the crime7

charged include all of the ele ments of the alleged lesser included offense.” Id. at 567. 5 Ex plaining why the distinction matters, we said that “the wording of a charging instru ment never fore closes or precludes an instruction on an inherently lesser inclu ded offense,” id. at 567

— and a factually

included of

fense may be foreclosed only by omitting the neces sary factual allega tions from the charging instrument , id. at 57 0. On that basis, we affirmed the lesser con vic tion because reckless homicide is in herently included in murder , and th us was not foreclosed by how the charge was draf ted

. 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 w as the proponent of the lesser charge, see id. at 571

– 72, and th us necessarily had fair notice of it. H ere, attempted aggravated battery is inherently included in murder , as both Court of Appeals panels recog nized

. Lee , 15 N.E.3d at 677 (“ [T]his court has long held that attempted aggravated battery is

an inherently lesser included offense to attempted murder.

. . . And it should go without saying that
at tempted murder is an inherently lesser inclu ded offense to murder.” (citation omitted) ); Young , 11 N.E.3d at 967

– 68 (“At first blush, it would seem attempted aggravated battery could be an in her ently lesser included offense of murder.”). Instead, we see these unusual facts as present ing the o pposite side of W right ’s question : Even though the elements of attempted aggravated battery are inherent ly included in mur der , did charging Defendant s 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 un re lated “means used” ?

B. Inherent Inclusion Is a Vital Part of the “Fair Notice” Inquiry, But It Is Not Always Dispositive
. Viewing the dispositive “fair notice” question as distinct from inherent/factual inclusion under Wright , we believe the Young panel took the better approach. T he State’s view of Wright implies that the “means used” for the greater and lesser offenses matters for only factual inclusion , and that any dis crepancy is irrelevant to fair notice as long as the elements of the lesser offense are

5 Under Wright ’s third step, if an offense “is either inherently or factually included” in the charged offense, the defendant is entitled upon request to have the jury instructed on the lesser offense when there is a “serious eviden tiary dispute about the element or elements distinguishing the greater from the lesser offense .” 658 N.E.2d at 567.8

inher ently included . To be sure, Wright ’s inclusion tests are a necessary p iece of th e larger fair

notice puzzle because there can never be fair notice of an uncharged offense unless it is inherently or factually included. But again, there was no question about “fair notice” in Wright because the defendant requested consideration of the lesser offense

— and indeed, Wright repeatedly qualified its inherent

- and factual

- inclusion tests in terms of whether an instruction was “requested.” 658 N.E.2d at 567. In that con text , in which most included

- offense questions arise , Wright is dis

positive

— as the Court of Appeals in Young implicitly recognized

. Se e 11 N.E.3d at 967

. But Wright also confirms the significance of the facts the State does

— or does not

— charge

. Wright reaffirmed that the State may strategically foreclose factually included lesser offenses by omit ting the operative facts from a charging information

. 658 N.E.2d at 570

. I f the State may wield factual omissions as a sword to preclude lesser offenses, an accused should be able to simi lar ly rely on them as a shield “to limit his defense to those matters with which he stands accused.” Garcia , 433 N.E.2d at 1209. Accordingly, we agree with Young 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 Defendant s of “fair notice” of the charge of which they were even tually convicted.
This conclusion does not contravene Wright ’s statement that “the wording of a charging instrument never fore closes or precludes an instruction on an inherently lesser inc lu ded offense .” 658 N.E.2d at 567

. As Wright goes on to explain, we were primarily refuting earlier cases’ suggestion that the State could foreclose consideration of an inherently included offense “by drafting a charging instrument to track the statutory language defining the crime charged .” Id. at 570 (em pha sis added ). Wright simply did not involve any discrepancy between the “means used” to commit the greater and lesser offenses, nor any larger question about the defendant’s “fair notice” of the lesser charge. Its statement about “the wording of a charging instrument” therefore should not be read more broadly than the question it addressed

— whether narrowly pleading the elements of a greater offense c an fore close a lesser offense.
II. Convicting Defendants Based on a Critical Operative Fact the State Never Pleaded, and in Fact Disclaimed at Trial, Is Fundamental Error
. Defendants acknowledge that they made no trial

- level objection to considering attempted aggravated battery as a lesser included offense, and t he Young and Lee panels di ffer ed on whether that failure precludes appel late review. Young held that Defendant s had no opportunity to object9

to the ruling at the time it was made and that the error was fundamental. 11 N.E.3d at 967 n.5. Lee disagreed on both points

— holding that the trial court’s statement that “ I’ll leave all the possible batteries on the table ” provided an “ideal time .

. . to lodge an objection,” 15 N.E.3d at 675; and that Young ’s statement that “ [a]t first blush , it would seem attempted aggravated battery could be an inherently lesser included offense of murder” implicitly acknowledged that the error was not sufficiently “egregious” or “blatant” to constitute fundamental error , id. at 676

– 77 ( quo ting Knap p v. State , 9 N.E.3d 1274, 1281 (Ind. 2014) )

. On the former point, we agree with the Lee panel

. It is true that under Trial Rule 46, “if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.” But here, w hen the trial court finished explaining its ruling, defense counsel interjected that “ [i] n terms of cou n t 1, you said all the batteries are still on the table” and asked the court to clarify that ruling, to which the court responded, “What’s unclear about that? .

. . All the battery lessors are still on the table.” That same opportunity to seek clari

ficatio n was also a perfectly viable opportunity to object to considering “the battery lessors.” Accordingly, Rule 46 does not excuse Defendant s’ failure to object. On the other hand, like Young , we do “find fundamental error resulting from the unusual cir cum st ances in this case.” 11 N.E.3d at 967 n.5. An error is fundamental , and thus reviewable despite failure to object, if it “made a fair trial impossible or constituted a clearly blatant vio la tion of basic and elementary principles of due process presenting an undeni a ble and substantial poten

tial for harm

. ” Kn a pp , 9 N.E.3d at 1281. 6 The error here meets that standard because it placed Defendants in an unworkable Catch

- 22 . When the State specifically relied on shooting as the “means used” to suppo rt the murder charge, Defendants relied on it

— as they had the right to do, Garcia , 433 N.E.2d at 1209

— to frame their defense solely in terms of a shooting, to the exclusi on of any other means. 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 :

6 This fundamental

- error standard, as reiterated in Knapp , is well settled. However, L ee focused instead on language in Knapp concerning whether the error was sufficiently “egregious” or “blatant” that the trial court should have acted sua sponte. Knapp , 9 N.E.3d at 1281 (quoting Brewington v. State , 7 N.E.3d 946, 974 (Ind. 2014)). Brewington and Knapp used those terms only to illustrate and amplify the well

- settled standard quoted above, not to introduce a new, alternative basis for finding fun damental error. We likewise apply the long

running fun da men tal

- error standard in this case
.10 [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 indica

tive 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 weap

on that was handed to him, he never used that weapon in any way. Bi lly Young handed away a weapon that he had.
Tr. 251

– 5 4

. Young’s counsel likewise argued :

Billy [Young] had a gun, then he hands it to another person. If he had specific intent to kill, he would have used that gun at that time to kill that person rather than passing it off to a 16 year old boy who didn’t know how to use it, and begin punching that person himself.

. . . His passing that gun off to a third person an d engag[ing] in the beating means he’s only subjectively aware of a high probability that he’s going to punch this person and not that he’s going to kill him.
Tr. 257. And in response, the State doubled down on its theory that Defendant s specifically did n ot 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 ove r 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 w hat they intended to do.
Tr. 261

. At that point, both sides had cast their dice

. In reliance on the State limiting its theory to par ti cipating in a shooting as expressly charged , Defendants had made binding judicial admissions about the beating

.11

Letting the State argue that there wa s no intent for a mere fistfight

— then, when its argument failed , reverse course and fall back on th e “means used” it expressly disclaimed mo ments earlier

— left Defendants in a dilemma no objection could have cure d

. As we have explained , t he 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 con tin uance to let the de fe nse
re vise its strategy to better meet the new charge

. M iller v. State , 753 N.E.2d 1284, 12 88 ( Ind. 2001 )

. Comparing this case with Miller illustrates why, in these unique circum stances , 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 provi de 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 factu ally included in the attempted murder charges (a matter we did not decide), the error would
not have be en 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 , i d. at 1286 n.7

— as th e attempted murder charges

. Th e common factual thread running through both charges m inimized 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,

a pparent ly 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 deli berate trap , but that was never theless its inescapable effect . A nd 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 review ed despite the lack of trial

- l evel objection

.12

Finding fundamental error excuses trial

- level waiver, but we must separately address whether Lee, as a matter of appellate practice, waived the included

- offense issue by failing to raise it in his appellate brief and advancing it for the fi rst time on rehearing. Generally, “new claims or issues, including constitutional arguments .

. . , cannot be presented for the first time in a petition for rehearing.” N. Ind. Commuter Transp. Dist. v. Chicago SouthShore & South Bend R.R. , 685 N.E.2d 680 , 686 (Ind. 1997) (citing City of Indianapolis v. Wynn , 239 Ind. 567, 159 N.E.2d 572 (1959))

. On the other hand, “ a reviewing court may exercise its discretion to review a constitutional claim on its own accord.” Plank v. Comm. Hosps. of Ind., Inc. , 981 N.E. 2 d 49, 54 (Ind. 2013).

We exercise that discretion here. If it is a “basic principle of just ice that like cases should be decided alike,” Martin v. Franklin Capital Corp. , 546 U.S. 132, 139 (2005), then it is even more fundamental that the very same case should be decided the same way as to identically situated par ticipants. Yet here, two co

- def endants face opposite results on the very same issue originating from the very same trial. One now stands acquitted and the other convicted, despite being identical in every way except their procedural posture on the included

- offense issue. To avoid that s erious injustice, we choose to address Lee on its merits in order to bring it into harmony with Young

. Conclusion Defendants must have “fair notice” of the charges of which they may be convicted, including inherently or factually included lesser offenses

. But under the unusual operative and procedural facts of this case

— the actual shooter remaining unidentified, the resulting ambigu ity as to whether the se Defendants intended to carry out a shooting, the State’s choice to rely on the shooting alone in the charging instruments and at trial , and the trial court’s unambiguous finding of reason able doubt on that particular theory

— we hold Defendant s lacked fair notice of the charge of which they were ultimately convicted , which under these circumstances establishes fundamental error . We therefore grant tr ansfer, reverse both Defendants’ convictions, and remand to the trial co urt with instructions
to enter judgment s of acquittal in both cases.
Dickson, Rucker, David, and Massa , JJ., concur.