ATTORNEY FOR APPELLANT                                ATTORNEYS FOR APPELLEE
Ruth A. Johnson                                       Gregory F. Zoeller
Marion County Public Defender Agency                  Attorney General of Indiana
Indianapolis, Indiana
                                            Monika Prekopa Talbot
                                            Deputy Attorney General
                                            Indianapolis, Indiana
__________________________________________________________________________________


                                             In the
                         Indiana Supreme Court                                     Nov 05 2015, 1:06 pm

                             _________________________________

                                        49S02-1511-CR-638

LATOYA LEE,
                                                                              Appellant,

                                                 V.

STATE OF INDIANA,
                                                                              Appellee.
                             _________________________________
               Appeal from the Marion Superior Court, No. 49G05-1209-MR-62638
                              The Honorable Grant Hawkins, Judge
                            _________________________________
       On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1310-CR-867
                             _________________________________

                                        November 5, 2015

Rush, Chief Justice.

       The State prosecuted three co-defendants on identical charges in the same trial. In a
companion case, we reversed the convictions of two of those three co-defendants—Billy Young and
Marquise Lee—and remanded to the trial court with instructions to enter judgments of acquittal.
Young v. State, 30 N.E.3d 719 (Ind. 2015). We now apply that holding to the third co-defendant—
Latoya Lee1––whose case is indistinguishable except that she belatedly filed her petition to transfer.


1
 To distinguish the two Lees, we will refer to Latoya Lee by her first name and to Marquise Lee by
his first name. We will refer to all other persons by their last names.
The State acknowledges that it has no new arguments in opposition to Latoya’s petition to transfer,
nor do we find any reason to treat Latoya differently than Young and Marquise. We therefore grant
Latoya’s petition to transfer and reverse her conviction as well.

                                   Facts and Procedural History

        Because we discussed the facts and procedural history in detail in the co-defendants’ appeal,
Young, 30 N.E.2d at 721–23, we will be brief here:

        On September 7, 2012, Latoya Lee (accompanied by her sixteen-year-old son Marquise Lee,
her twenty-three-year-old cousin Billy Young, and a male with a tattoo on his face) confronted
Ramon Gude outside his apartment in retaliation for Gude having struck Latoya in the face during
an argument two days earlier. Marquise and Gude began fistfighting until Gude retreated to his apart-
ment, where his girlfriend Tiara Richardson attempted to pull him inside. Before Gude could close
the door, all of Latoya’s companions rushed in while Latoya remained outside telling Richardson to
“get out of the way.” Young handed an unloaded handgun to Marquise, who never loaded or pointed
it. Then while Young continued the fight, the tattooed man fatally shot Gude—surprising the other
three attackers. All four ran away, but Richardson identified both Lees and later identified Young
from a photo array, though the tattooed man remained unidentified at trial.

        The State charged all three Defendants with murder, based expressly on the shooting, and
with conspiracy to commit murder, alleging the murder itself as the overt act in furtherance of the
conspiracy. The 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 Defendants
moved for involuntary dismissal for failure of proof under Indiana Trial Rule 41(B). The trial court
granted the motion and dismissed both charges—finding reasonable doubt about whether the
shooting was planned, as opposed to simply “tak[ing] some friends and family over there to pound
on [Gude].” But without objection from the Defendants, the court then invited arguments on lesser
included battery offenses based on a plan to beat Gude—and after hearing closing arguments, it
returned a verdict of attempted aggravated battery as a lesser included offense of the murder
charge, with the fistfight as the “substantial step” necessary for the attempt. It sentenced the
Defendants to fifteen years.


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        Latoya appealed, arguing her conviction rested on insufficient evidence and challenging
her sentence on various grounds. Marquise and Young each appealed separately and challenged
the sufficiency of the evidence—but Young also argued that attempted aggravated battery was not
properly a lesser included offense of murder under the circumstances.

        Three panels of the Court of Appeals reached opposite conclusions: Latoya’s and Marquise’s
panels left the convictions and fifteen-year sentences intact, but Young’s panel reversed his convic-
tion on grounds that he lacked fair notice of the attempted aggravated battery charge and the error
was fundamental. Latoya Lee v. State, No. 49A02-1310-CR-867, 2014 WL 2587313 (Ind. Ct. App.
June 10, 2014); Young, 30 N.E.3d at 722. Latoya and Marquise separately petitioned for rehearing,
belatedly raising the argument that had prevailed in Young. Latoya Lee v. State, No. 49A02-1310-
CR-867, 2014 WL 4291784 (Ind. Ct. App. Aug. 27, 2014). Both petitions were denied, and Latoya
did not pursue her appeal further. But the State sought transfer in Young, and Marquise sought
transfer in his case—and we granted transfer and issued a single decision reversing both convictions.
See 30 N.E.3d 719. We now grant Latoya’s belated petition to transfer in a separate order issued
together with this opinion.

                                       Discussion and Decision

I. Charging Murder (or Conspiracy to Commit Murder) By Shooting Does Not, Without
   More, Give Fair Notice of Lesser Included Charges Based on a Beating.

        Our analysis of lesser included offenses and fair notice in Young applies with full force here,
and we need not repeat it in detail. It is enough to summarize that defendants must have “clear notice
of the charge or charges against which the State summons [them] to defend,” Wright, 658 N.E.2d
563, 565 (Ind. 1995), in order to know what they do or do not need to defend against. Young, 30
N.E.3d at 723 (quoting Bruce v. State, 230 Ind. 413, 420–21, 104 N.E.2d 129, 132 (1952) and
Garcia v. State, 433 N.E.2d 1207, 1209 (Ind. Ct. App. 1982)). Adequate notice “is vital to both sides
of a criminal case,” and “[d]ue process will brook no confusion on the subject.” Id. (quoting
Wright, 658 N.E.2d at 565).

        In most cases, including Wright, fair notice is not at issue because the defendant is the pro-
ponent of the lesser charge. Id. at 723–24 (citing Wright, 658 N.E.2d at 567). In those cases, Wright’s
inherent- and factual-inclusion tests are dispositive, and they are a vital part of every included offense


                                                    3
question. But fair notice is a separate matter Wright does not address. Id. at 724–25. Instead, as we
observed in Young, the unusual facts of these cases present the opposite side of Wright’s question:
Even though the elements of attempted aggravated battery are inherently included in murder, did
charging the defendants only with murder by shooting deprive them of “fair notice” to defend also
against the lesser charge of attempted aggravated battery by beating—a different and unrelated
“means used”? Id. at 724. And like Young, we conclude 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 Latoya of “fair notice” of the charge
of which she was eventually convicted and the corresponding right “to limit [her] defense to those
matters with which [she] stands accused.” Id. at 725 (quoting Garcia, 433 N.E.2d at 1209).

II. It was Fundamental Error to Convict Defendant, Like Her Co-Defendants, Based on a
    Critical Operative Fact the State Never Pleaded and in Fact Disclaimed at Trial.

        Latoya, like her two co-defendants, acknowledges she made no trial-level objection to con-
sidering attempted aggravated battery as a lesser included offense. 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, as we found in Young, defense counsel missed a per-
fectly viable opportunity to object to the trial court’s considering the “battery lessors.” Id. Rule 46,
therefore, did not excuse her failure to object.

        But as we held in Young, the error here was fundamental because it placed the Defendants in
an unworkable Catch-22. Id. at 727–28. When the State specifically relied on shooting as the “means
used” to support the murder charge, Latoya and her co-defendants relied on it—as they had the right
to do, Garcia, 433 N.E.2d at 1209—and made binding judicial admissions about the beating in order
to frame their defense solely in terms of the charged shooting, to the exclusion of any other means:

        Judge, I’ll join in on . . . [the] arguments made by my co-counsels . . . There was
        evidence that Marquise struck Ramon with his fist, but there was no evidence that
        that went beyond a misdemeanor battery.

Tr. 258. And in response, the State doubled down on its theory that the Defendants specifically did
not intend a fistfight and instead intended a shooting, based on Gude’s lack of injuries besides the
fatal gunshot wounds. Tr. 261.

        Once the Defendants had detrimentally relied on the State’s charged “means used” by admit-
ting their intent to beat Gude, it was too late for the State to reverse course and assert the same


                                                   4
“means used” it disclaimed moments earlier. Doing so placed the Defendants in a dilemma 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. The error was therefore
fundamental and may be reviewed despite the lack of trial-level objection.

       Finally, because this included-offense question is a matter of due process, we exercise our
discretion here, as in Young, to review that constitutional issue on our own accord, despite
appellate waiver by advancing it for the first time on rehearing. 30 N.E.2d at 728 (citing N. Ind.
Commuter Transp. Dist. v. Chicago SouthShore & South Bend R.R., 685 N.E.2d 680, 686 (Ind.
1997) and Plank v. Comm. Hosps. of Ind., Inc., 981 N.E.2d 49, 54 (Ind. 2013)). Latoya’s case, no
less than Marquise’s, implicates the “basic principle of justice that like cases should be decided
alike,” Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005)—and that even more funda-
mentally, the very same case should be decided the same way as to identically situated participants.
Here, Latoya faces opposite results than her son and Young on the very same issue originating
from the very same trial. She now stands convicted while the others stand acquitted, despite being
identical in every way except their procedural postures. Even more significantly, Latoya stands
convicted and Marquise acquitted, despite being identical in every way, including their procedural
posture on the included-offense issue. To avoid that serious injustice, we therefore choose to address
Latoya’s case on its merits and reverse her conviction, consistent with our decision in Young.

                                            Conclusion

       Having already exercised our discretion to permit Latoya to file a belated petition to
transfer, we see no reason to treat her differently than Young and Marquise, who now stand acquit-
ted as a result of our decision in Young. We therefore grant transfer, reverse Latoya’s conviction,
and remand to the trial court with instructions to enter a judgment of acquittal.

Dickson, Rucker, David, and Massa, JJ., concur.




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