ATTORNEY FOR APPELLANT                              ATTORNEYS FOR APPELLEE
John B. Steinhart                                   Gregory F. Zoeller
Lafayette, Indiana                                  Attorney General of Indiana

                                                    George P. Sherman
                                                    Eric P. Babbs
                                                    Deputy Attorneys General
                                                    Indianapolis, Indiana




                                           In the
                         Indiana Supreme Court                                    Jan 15 2015, 3:10 pm



                                   No. 48S02-1404-CR-297

RUBEN ROSALES,
                                                            Appellant (Defendant below),

                                               v.

STATE OF INDIANA,
                                                            Appellee (Plaintiff below).


          Appeal from the Madison County Circuit Court, No. 48C03-1207-FA-1240
                        The Honorable Thomas Newman, Jr., Judge


      On Petition to Transfer from the Indiana Court of Appeals, No. 48A02-1303-CR-229



                                       January 15, 2015

David, Justice.

       A jury instruction setting forth the elements of attempted murder must inform the jury
that the State must prove beyond a reasonable doubt that the defendant, with specific intent to
kill the victim, engaged in conduct constituting a substantial step toward such killing. Spradlin
v. State, 569 N.E.2d 948, 950 (Ind. 1991). Similarly, when attempted murder is premised on
accomplice liability, the jury is required to be instructed that the State must prove beyond a
reasonable doubt that the defendant acted with specific intent to kill. Hopkins v. State, 759
N.E.2d 633, 637 (Ind. 2001) (citing Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000)). But in
this case, although the trial court properly instructed Ruben Rosales’s jury on the elements of
attempted murder, it failed to inform them that the State had to establish beyond a reasonable
doubt that Rosales acted with specific intent to kill when he knowingly or intentionally aided,
induced, or caused another person to attempt murder. This error was compounded during closing
arguments when the State repeatedly insisted that specific intent to kill was not required for
accomplice liability to attempted murder.        Subsequently, the jury found Rosales guilty of
attempted murder, but the general verdict form made it impossible to determine whether direct or
accomplice liability formed the basis of their collective decision.

       On appeal, Rosales argues that the trial court committed fundamental error by giving an
instruction permitting the jury to convict him of attempted murder as an accomplice without the
specific intent to kill. Our careful review of our case law leads us to conclude that under the
circumstances of this case Rosales is correct.

                                  Facts and Procedural History

       In June of 2012, eighteen-year-old Rosales was a member of the Latin Kings gang in
Anderson, Indiana. Fifteen-year-old Sergio Torres was affiliated with rival gang Serrano 13,
which had been harassing Rosales’s girlfriend by making threats against her and vandalizing her
house. On the afternoon of June 27, 2012, Torres was walking down an alley when a van
carrying Rosales—who is Hispanic—and Donovan Ball—who is Caucasian and was a close
associate of the Latin Kings—pulled in behind him. Ball, unarmed, exited the van. As Torres
faced Ball, he felt a sharp blow to his head and lost consciousness.         When he regained
consciousness, he observed Ball and Rosales running back to the van, which then sped away.

       Nearby witness Melamekia Watson would later testify that she observed a Caucasian man
and a Latino man carrying a metal baseball bat exit the van and run down the alley. According




                                                  2
to Watson, the same men ran out of the alley “like they [were] on a mission” and got back into
the van. (Tr. at 268–69.) The Latino man was still carrying the bat.

       When police arrived at the scene, Torres was bleeding profusely from lacerations on his
head and slipping in and out of consciousness. He was transported to an Anderson hospital,
where Nurse Cheryl Reese and Doctor Myron Bielski observed what they considered to be life-
threatening injuries: multiple skull fractures, a subdural hematoma, and bleeding of the brain.
Torres underwent brain surgery but continued to suffer headaches as a result of the trauma.

       The following day, Rosales, appearing nervous, told his aunt Michelle Rosales that he
needed to leave for Chicago because he “didn’t want to see himself get in anymore trouble.” (Tr.
at 325–26.) She drove him to an Indianapolis bus station and purchased a ticket for him. When
the cashier asked who was traveling, Ruben Rosales gave a fake name.

       On her way home, Michelle Rosales called a mutual acquaintance and inquired about the
cause of her nephew’s behavior. After the acquaintance informed her of the attack, she called
police, who arrested Ruben Rosales at the bus station.

       The State then charged Rosales with class A felony attempted murder1 and class D felony
criminal gang participation.2     At his jury trial and during final instructions, the trial court
instructed the jury on attempted murder: “the crime of attempted murder is defined as follows: a
person attempts to commit a murder when, acting with the specific intent to kill another person,
he engages in conduct that constitutes a substantial step toward kill[ing] that person.” (Tr. at
557.) Though Rosales was not charged as an accomplice to attempted murder and his attempted
murder charge was not explicitly premised on a theory of accomplice liability, the trial court also
instructed the jury on accomplice liability as follows: “[a] person who knowingly or intentionally
aids, induces or causes another person to commit an offense commits that offense . . . [a]n


1
   Ind. Code § 35-41-5-1(a) (2008) (now codified as Ind. Code § 35-41-5-1(a) (effective July 1, 2014))
and Ind. Code § 35-42-1-1(1) (2008) (now codified as Ind. Code § 35-42-1-1(1) (effective July 1, 2014)).
2
  Ind. Code § 35-45-9-3 (2008) (now codified as Ind. Code § 35-45-9-3 (effective July 1, 2014)).


                                                   3
accomplice is liable for the acts of the principal which, even if not a part of their original plan,
are probable and natural consequences thereof.” (Tr. at 563.)

          During closing arguments, the State argued both theories of liability. As we discuss in
detail below, the State repeatedly relied on the incorrect accomplice liability instruction. For
example, the State argued that it “only has to prove that one person intended for death to occur.”
(Tr. at 518.) Additionally, the verdict form did not distinguish between Rosales’s potential direct
liability or accomplice liability for the attempted murder of Torres.

          Rosales’s jury found him guilty as charged, and the trial court sentenced him to an
aggregate term of fifty years executed in the Indiana Department of Correction.            He then
appealed his attempted murder conviction, claiming that the trial court’s inaccurate jury
instruction on accomplice liability as a basis for attempted murder constituted fundamental error.
According to Rosales, under Hopkins, the trial court was required to instruct the jury that it must
find that he had the specific intent to kill Torres when he knowingly or intentionally aided,
induced, or caused another, presumably Ball, to attempt to murder Torres. 759 N.E.2d at 637.

          A divided panel of the Court of Appeals affirmed the trial court. Rosales v. State, 3
N.E.3d 1014, 1019 (Ind. Ct. App. 2014) (Crone, J., dissenting). We granted Rosales’s petition to
transfer,3 thereby vacating the opinion below pursuant to Ind. Appellate Rule 58(A), in order to
resolve an issue of first impression before this Court: whether an accomplice liability instruction
was fundamentally erroneous for not stating that an accomplice to attempted murder must have
the specific intent to kill when he or she knowingly or intentionally aids, induces, or causes
another to attempt murder, where it is unknown if the defendant was convicted of attempted
murder on the basis of accomplice liability or direct liability.




                                            Standard of Review


3
    Rosales v. State, 7 N.E.3d 992 (table) (2014).


                                                     4
       As “[t]he manner of instructing a jury lies largely within the discretion of the trial court,”
this Court reverses a trial court’s jury instruction “only for an abuse of discretion.” Henson v.
State, 786 N.E.2d 274, 277 (Ind. 2003). But because Rosales did not object to the accomplice
liability instruction given by the trial court or tender his own accomplice liability instruction, he
waived his right to appeal the instruction provided to the jury. Hopkins, 759 N.E.2d at 638.
Consequently, we “will only reverse the trial court if the trial court committed error that was
fundamental,” Id., in instructing the jury on the elements of accomplice liability when attempted
murder is charged. Fundamental error “is a substantial, blatant violation of due process” that
“must be so prejudicial to the rights of a defendant as to make a fair trial impossible.” Id.
(internal citations omitted).

                                            Discussion

 I.      Jury Instructions on either Direct or Accomplice Liability for Attempted Murder

       First, we look to our precedent on instructing juries when a defendant is tried, under
either a theory of direct liability or accomplice liability, for attempted murder. In Spradlin, we
determined that a jury instruction

               which purports to set forth the elements which must be proven in
               order to convict of the crime of attempted murder must inform the
               jury that the State must prove beyond a reasonable doubt that the
               defendant, with intent to kill the victim, engaged in conduct which
               was a substantial step toward such killing.
569 N.E.2d at 950 (emphasis added). This requirement that the State establish the defendant’s
specific intent to kill in order to prove him or her directly liable for attempted murder stems from
“the stringent penalties for attempted murder and the ambiguity often involved in its proof.”
Hopkins, 759 N.E.2d at 637.          Thus, we have “singled out attempted murder for special
treatment” in the form of the State’s heightened mens rea showing. Id.

       The State’s need to demonstrate the defendant’s specific intent to kill remains when the
State seeks a conviction for attempted murder under an accomplice liability theory. Specifically,


                                                 5
the State must prove beyond a reasonable doubt: “(1) that the accomplice, acting with the
specific intent to kill, took a substantial step toward the commission of murder, and (2) that the
defendant, acting with the specific intent that the killing occur, knowingly or intentionally aided,
induced, or caused the accomplice to commit the crime of attempted murder.” Id. (quoting
Bethel, 730 N.E.2d at 1246).

       Despite these requirements, some trial courts have still instructed juries that “knowing” is
a sufficient mens rea to establish attempted murder. For example, in Williams v. State, the trial
court gave this instruction: “[t]o convict the defendant of the crime of attempted murder, the
State must have proved the following elements: 1. [t]he defendant knowingly or intentionally 2.
took a substantial step to accomplish 3. a knowing or intentional killing of [the victim].” 737
N.E.2d 734, 737 (Ind. 2000). On review, we found this instruction fundamentally erroneous;
moreover, we recognized that “[w]e have consistently held that this form of attempted murder
instruction misinforms a jury as to the appropriate mens rea and thus constitutes fundamental
error.” Id. (listing a series of cases finding “[f]undamental Spradlin error” where jury instruction
with “knowingly or intentionally” or “knowingly” mens rea was deemed sufficient to establish
mens rea for attempted murder).

       However, we acknowledged that “there have been cases where, despite clear Spradlin
error, we did not vacate an attempted murder conviction because (i) the intent of the perpetrator
was not a central issue at trial; (ii) the instructions as a whole sufficiently suggested the
requirement of intent to kill; or (iii) both.” Id. (footnotes omitted).4 Stated differently, when the
required specific intent to kill language is not given in a jury instruction, but where there has
been only one theory of liability for attempted murder alleged and (1) the identity, and not the
intent, of the perpetrator is the central issue; and/or (2) the requirement of specific intent to kill
was set forth in other instructions, we have deemed such an error harmless under Spradlin.


4
  The three cases cited in Williams—Swallows v. State, 674 N.E.2d 1317, 1318 (Ind. 1996); Ramsey v.
State, 723 N.E.2d 869, 872–73 (Ind. 2000); and Jackson v. State, 575 N.E.2d 617, 621 (Ind. 1991)—
involved only direct liability theories of attempted murder.


                                                  6
          But our case law only addresses either a defendant’s direct liability or accomplice
liability for attempted murder as the sole theory of liability.5 Here, in addition to instructing the
jury (correctly) on the elements of attempted murder under a theory of direct liability, the trial
court gave an accomplice liability instruction that, under Hopkins, failed to set forth that an
accomplice must have the specific intent to kill when he or she knowingly or intentionally aids,
induces, or causes another to attempt to commit murder. And because of the general verdict
form, we do not know the theory of liability under which the jury convicted Rosales of attempted
murder.      We must now determine whether this improper accomplice liability instruction
constituted fundamental error under the circumstances of this case.

    II.     Jury Instruction Omitting Specific Intent to Kill Requirement Is Fundamentally
                                           Erroneous in this Instance

          To resolve this issue of first impression, Rosales urges us to look to precedent on
accomplice liability. He contends that because his intent to kill was at issue, the trial court’s
failure to properly instruct the jury led to the possibility that he was convicted of attempted
murder as an accomplice without the specific intent to kill—but based instead on his knowingly
aiding, inducing, or causing another person to attempt to murder Torres—and thus was
fundamentally erroneous.

          In response, the State argues that the trial court’s preliminary6 and final7 instructions on
attempted murder adequately informed the jury that in order to convict Rosales of attempted

5
   See, for example, Hopkins, 759 N.E.2d at 637 (accomplice liability); Williams, 737 N.E.2d at 741
(accomplice liability); Ramsey, 723 N.E.2d at 871 (direct liability); Swallows, 674 N.E.2d at 1318 (direct
liability); and Jackson, 575 N.E.2d at 620 (direct liability).
6
   The trial court read the jury the following relevant preliminary instruction: “the State of Indiana has
charged the defendant with . . . Count II, Attempted Murder, on or about June 27, 2012, in Madison
County, State of Indiana, Ruben Mezar Rosales, did intentionally attempt to kill another human being, to-
wit: Sergio Torres.” (Tr. at 212–13.)
7
   As previously stated, during final instructions, the trial court repeated the language of Count II and read
the jury the following applicable instruction: “the crime of attempted murder is defined as follows: a
person attempts to commit a murder when, acting with the specific intent to kill another person, he
engages in conduct that constitutes a substantial step toward kill[ing] that person.” (Tr. at 555–57.)


                                                      7
murder the State must prove that Rosales had the specific intent to kill Torres. Additionally, the
State reasons that the inaccurate accomplice liability instruction did not constitute fundamental
error because of “strong” evidence presented at trial that Rosales was the principal in the attack,
for example the testimony of Torres and witness Melamekia Watson, and Rosales’s attempted
flight after the attack. (Appellee’s Br. at 11–12.) Lastly, the State insists that “there could be no
real dispute as to the intent of the perpetrator of this attack in light of the weapon used, the part
of Torres’ body that was struck, and the severity of Torres’ injuries. . . . the baseball bat was
obviously used in a manner to cause death.” (Appellee’s Br. at 12.) According to the State, “in
light of the substantial evidence that Rosales attacked Torres with a baseball bat and fractured his
skull, the accomplice liability instruction was not so prejudicial as to make a fair trial
impossible.” (Appellee’s Br. at 12 (citing Cowherd v. State, 791 N.E.2d 833, 841 (Ind. Ct. App.
2003), trans. denied).) For these reasons, the State maintains that the faulty accomplice liability
instruction amounts to no more than harmless error.

       Faced with these competing arguments, a majority of the Court of Appeals concluded that
Rosales failed to demonstrate that the inaccurate jury instruction on accomplice liability was
fundamentally erroneous. Rosales, 3 N.E.3d at 1018.

               Not only is Rosales’ conviction supported by sufficient evidence,
               but the trial court’s instructions on accomplice liability were
               harmless because, on the facts of this case, they were not essential
               to Rosales’ conviction. Rather, the trial court’s additional
               instructions for alternative liability on the theory that Rosales may
               have been the accomplice were “mere surplusage . . . [and] simply
               did not matter . . . .” Thomas v. State, 827 N.E.2d 1131, 1134
               (Ind. 2005).
Rosales, 3 N.E.3d at 1018. Dissenting, Judge Crone believed that the incorrect accomplice
liability instruction constituted fundamental error due to the possibility that Rosales’s jury could
have convicted him as an accomplice to attempted murder without finding that he possessed the
necessary specific intent to kill. Id. at 1020.




                                                  8
       Looking for guidance on an issue of first impression, the majority below relied on
Thomas to reach its conclusion. However, in this case, reliance on Thomas was misplaced. We
base our conclusion on the heightened mens rea showing required by the State when an
attempted murder conviction is sought—and attempted murder was not charged in Thomas.
There, the charging information alleged, among other things, that Thomas was guilty of felony
murder because he had “knowingly or intentionally kill[ed] another human being, namely
Sheldon Byrd while dealing in cocaine or a narcotic drug.” Thomas, 827 N.E.2d at 1133. Thus,
Thomas’s charging information blended the essential elements of two crimes: it set forth all of
the elements necessary to convict Thomas of a “knowing or intentional” murder as well as a
felony that would support a conviction for felony murder.8 Id.

       Not surprisingly, “there was a fair amount of imprecision” at Thomas’s trial over whether
he was being tried for a “knowing and intentional” murder or for felony murder. Id. The
confusion carried over into Thomas’s jury instructions when the trial court read the jury the
following preliminary and final instruction: “A person who: knowingly or intentionally kills
another human being; while committing or attempting to commit: (A) dealing in cocaine or a
narcotic drug (Ind. Code [§] 35-48-4-1), commits murder, a felony.” Id. The jury subsequently
returned a verdict of guilty. Id.

       On transfer, we reasoned that “[w]hile the jury verdict, court judgment, and sentencing
order were silent as to whether Thomas was convicted of [k]nowing or [i]ntentional [m]urder or
[f]elony [m]urder, both the charging information and jury instructions contain each of the
elements of [k]nowing or [i]ntentional [m]urder.”        Id. at 1133–34.     Because the jury was
instructed on all of the elements of a “knowing or intentional” murder, we deemed the stray
reference to dealing in cocaine to be “mere surplusage,” and thus harmless error, and affirmed
Thomas’s conviction for “knowing and intentional” murder. Id. at 1134.

8
  Felony murder, of course, does not require a knowing or intentional killing, but only a killing done
while committing or attempting to commit a prescribed felony, such as dealing in cocaine or a narcotic
drug. Ind. Code § 35-42-1-1 (effective July 1, 2014); Griffin v. State, 717 N.E.2d 73, 85 (Ind. 1999).



                                                  9
       Extending our analysis in Thomas, a majority of the Court of Appeals found that “the
trial court properly instructed the jury on all the elements of the offense of attempted murder,
with respect to which the additional instructions on accomplice liability were mere surplusage . .
. . ‘it simply [did] not matter how’ the jury was instructed on accomplice liability.” Rosales, 3
N.E.3d at 1018–19 (quoting Thomas, 827 N.E.2d at 1134) (emphasis added).

       However, we do not agree that the incorrect accomplice liability instruction was “mere
surplusage” or an unnecessary extra. To the contrary, accomplice liability was a distinct basis
for the jury to convict Rosales of attempted murder. And although the trial court did correctly
instruct the jury on direct liability for attempted murder, here the jury was not instructed as to all
the elements necessary to properly convict Rosales of attempted murder under an accomplice
liability theory. Because we have no way of discerning which theory of liability the jury used to
find Rosales guilty of attempted murder, “it very much does matter in this case” how the jury
was instructed on accomplice liability, as Judge Crone stated. Rosales, 3 N.E.3d at 1020.

       Under Spradlin, this instruction is plainly insufficient, as a proper attempted murder
conviction requires a finding of Rosales’s specific intent to kill by the jury. Such an instruction
is also insufficient under Hopkins, which dictates that the State must prove beyond a reasonable
doubt, among other things, that Rosales, “acting with the specific intent that the killing occur,
knowingly or intentionally aided, induced, or caused [another person] to commit the crime of
attempted murder.” 759 N.E.2d at 637 (quoting Bethel, 730 N.E.2d at 1246) (emphasis added).
Accordingly, the trial court erred in instructing the jury that Rosales could be convicted of
attempted murder as an accomplice without the specific intent to kill.

       Furthermore, the general verdict form did not allow the jury foreman to mark the basis
for Rosales’s attempted murder conviction.         As such, the jury’s verdict may have rested
exclusively on accomplice liability grounds (including a finding of Rosales’s “knowing or
intentional” mens rea), solely on direct liability grounds (including a finding of his “specific
intent to kill”), or a combination thereof. We do not know how many jurors, if any, voted to



                                                 10
convict Rosales of attempted murder under an accomplice liability theory with a “knowing”
mens rea. But under the accomplice liability instruction given, they could have.

       However, our conclusion that the trial court erred in giving the faulty accomplice liability
instruction does not end our inquiry. As previously stated, Hopkins is rooted in our policy
judgment that “the stringent penalties for attempted murder and the ambiguity often involved in
its proof” make it appropriate to “single[] out attempted murder for special treatment.” 759
N.E.2d at 637. Thus, the mere possibility of prejudice to Rosales from the inaccurate instruction
does not justify reversal of his conviction without a showing that he incurred actual prejudice.
Our fundamental error inquiry therefore requires us to consider whether the error was prejudicial
enough under the circumstances of this case to make a fair trial impossible.

       Here, we find that the inaccurate accomplice liability instruction was harmful enough to
constitute fundamental error because the State’s closing arguments repeatedly told the jury that
specific intent to kill was not required for accomplice liability. In its principal argument, which
barely spans ten pages, the State told the jury that “you don’t have to concern yourselves with
who had the bat” (Tr. at 514), that whether Rosales or Donovan Ball “swung that bat . . . doesn’t
matter under the law” (Tr. at 518), and that—directly contrary to Hopkins—“the State only has
to prove that one person intended for death to occur.” (Tr. at 518.)

       Returning to that inaccurate statement of law in its rebuttal, the State argued that “the two
. . . people in the van are just as guilty no matter who swung that bat, whether they both swung
the bat.” (Tr. at 551.) The State continued that “[i]f [Rosales] helps, he’s guilty, whether he
swung the bat or not, he is responsible for the consequences of the other people that he’s
involved in the criminal activity with, period.” (Tr. at 552.) Though each of these statements
may hold true for most accomplice liability offenses, for attempted murder premised on a theory
of accomplice liability, Hopkins unequivocally holds otherwise.

       If not for the State’s repeated reliance on the inaccurate accomplice liability instruction,
the error in this case likely would not rise to the level of fundamental. We agree with the State


                                                11
that “the evidence was strong that Rosales was the principal in this attack,” and that the manner
in which the victim was beaten raises no serious question of the principal’s intent to kill.
(Appellee’s Br. at 11–12.)

       However, considering that the getaway driver was also a Hispanic man, Rosales was not
necessarily the Hispanic man Melamekia Watson observed carrying the bat both before and after
the attack on Torres. Furthermore, an accomplice may not necessarily have known that the bat
would be used to inflict life-threatening injuries on Torres.

       To be sure, there were also ample reasons for the jury to conclude that Rosales attacked
Torres with the specific intent to kill him, so if the State had not repeatedly misstated the law we
likely would have found an insufficient likelihood of prejudice to Rosales from the instruction.
But the State’s repeated insistence that Rosales’s specific intent to kill did not matter, coupled
with the inaccurate jury instruction on accomplice liability, is enough to make a fair trial
impossible and constitute fundamental error. We therefore reverse Rosales’s conviction for
attempted murder and remand this case to the trial court for a new trial.

       Nevertheless, going forward, when an individual is tried for attempted murder as an
accomplice, we recommend that Pattern Jury Instruction 2.11(a) be given. This instruction—
titled “Aiding, Inducing or Causing Attempted Murder”—instructs the jury, among other things,
that the State must prove beyond a reasonable doubt that the defendant acted with the specific
intent to kill when he or she knowingly or intentionally aided, induced, or caused another person
to engage in conduct constituting a substantial step toward attempting to murder another person.
Consistent with our case law, this instruction informs the jury of the State’s burden to prove
beyond a reasonable doubt all the elements of attempted murder under an accomplice liability
theory—especially the defendant’s specific intent to kill—in order to convict the defendant. And
when the defendant is tried under both direct and accomplice theories of liability for attempted
murder, this instruction becomes crucial to safeguarding against the error we found in this case.

                                            Conclusion


                                                 12
       We reverse Rosales’s conviction for attempted murder and remand to the trial court for a
new trial and other proceedings consistent with this opinion.




Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.




                                                13
