FOR PUBLICATION                                                       Aug 27 2014, 9:18 am




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

ELLEN M. O’CONNOR                            GREGORY F. ZOELLER
Marion County Public Defender Agency         Attorney General of Indiana
Indianapolis, Indiana
                                             MONIKA PREKOPA TALBOT
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

MARQUISE LEE,                                )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )       No. 49A02-1310-CR-869
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Grant W. Hawkins, Judge
                          Cause No. 49G05-1209-MR-62632



                                   August 27, 2014


                   OPINION ON REHEARING - FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Marquise Lee petitions for rehearing after we affirmed his conviction for

attempted aggravated battery, a Class B felony, in a not-for-publication memorandum

decision. See Marquise Lee v. State, No. 49A02-1310-CR-869, 2014 WL 2187702 (Ind.

Ct. App. May 27, 2014) (“Marquise Lee I”). Marquise and two of his confederates,

Latoya Lee and Billy Young, were each charged with the murder of Ramon Gude, they

were tried jointly to the bench, and, on their joint motion, the trial court entered an

involuntary dismissal of the State’s murder charges. However, in doing so the court

“kept the case open for consideration of lesser included battery charges.” Id. at *1. The

court then found each of the three defendants guilty of attempted aggravated battery, and

the defendants separately appealed. Following this panel’s decision, another panel of this

court unanimously reversed Young’s conviction. Young v. State, ___ N.E.3d ___, 2014

WL 2616189 (Ind. Ct. App. 2014), reh’g denied (July 22, 2014). A third panel of this

court unanimously affirmed Latoya’s conviction and sentence. Latoya Lee v. State, No.

49A02-1310-CR-867, 2014 WL 2587313 (Ind. Ct. App. June 10, 2014), reh’g granted

and decision aff’d (August 27, 2014) (“We grant rehearing to acknowledge our

awareness of the decision in Young but decline to reverse our earlier decision . . . as

[Latoya] did not raise any issue concerning the charging information on appeal.”).

Marquise now petitions for rehearing and asks that this panel follow the Young panel’s

reasoning. We decline to do so and affirm our prior decision.




                                            2
                      FACTS AND PROCEDURAL HISTORY

      In Marquise Lee I, we set out the facts underlying Marquise’s conviction for

attempted aggravated battery, a Class B felony, as follows:

      Tiara Robertson used to date Brandon Lee and was good friends with
      Brandon’s sister, Latoya Lee. Latoya is Marquise’s mother.

             Sometime before September of 2012, Tiara left Brandon and began
      dating Ramon Gude. This upset Latoya and, on September 5, 2012, Latoya
      confronted Tiara at Tiara’s and Ramon’s shared residence. Ramon
      interceded in this argument and hit Latoya in the face. Latoya was “mad”
      and left saying, “I’ll be back.” Transcript at 32.

              On September 7, Latoya returned to Tiara’s and Ramon’s residence.
      Latoya was accompanied by Marquise, Billy Young (a cousin of Latoya
      and Brandon), and a third, unknown man. Tiara was upstairs when they
      arrived but rushed downstairs when she heard Ramon yelling. Upon
      arriving downstairs, she observed Marquise attacking Ramon, who was
      trying to get inside. Tiara tried to help pull Ramon inside the house during
      the attack. Latoya told Tiara to “get out of the way.” Id. at 39.

              Once inside the residence, Ramon “balled up” his body while the
      three men came inside to continue their attack. Id. Tiara then observed
      Billy hand a firearm and clip to Marquise. But Marquise was not able to
      load the clip into the firearm. While Tiara watched Marquise fumble with
      his clip and firearm, Billy was in her line of sight, and Latoya was outside.
      Tiara then heard several gunshots from the direction of the unknown man
      and observed that Marquise and Billy “looked . . . surprised.” Id. at 76.
      Ramon collapsed, the assailants fled, and Tiara called 9-1-1. A neighbor
      heard the gunshots, witnessed the assailants flee the scene, and recognized
      the female assailant from the September 5 argument. Ramon died later that
      day from his gunshot wounds.

             On September 24, the State charged Latoya, Marquise, and Billy
      with murder, a felony, and conspiracy to commit murder, a Class A felony.
      The defendants were tried jointly to the bench on September 9 and 10,
      2013. Following the close of the State’s evidence, the trial court granted
      the defendants’ motion for involuntary dismissal of the murder and
      conspiracy to commit murder charges but kept the case open for
      consideration of lesser included battery charges. Following the trial, the
      court found Marquise guilty of attempted aggravated battery, a Class B
      felony, and sentenced him to fifteen years
                                            3
2014 WL 2187702 at *1 (footnotes omitted). For the same reasons, the trial court entered

the same convictions and sentences for Latoya and Young. The man who actually shot

and killed Ramon remains unknown.

      Marquise, Latoya, and Young separately appealed their sentences and convictions

and each appeal was reviewed by a different panel of this court. In Marquise Lee I, this

panel unanimously held that the State presented sufficient evidence to support Marquise’s

conviction for attempted aggravated battery. Id. at *2. In particular, we noted that, in

granting the defendants’ motion for involuntary dismissal of the murder and conspiracy

to commit murder charges but then entering judgment for attempted aggravated battery,

      the trial court concluded that the State had demonstrated that Marquise
      intended at least to severely beat Ramon but was interrupted when the
      unknown man at the scene murdered Ramon. And the trial court’s
      conclusion is supported by the evidence. We agree with the State that the
      evidence shows that Marquise and his companions intended to inflict the
      type of injuries on Ramon that are contemplated in the aggravated battery
      statute. Appellee’s Br. at 10. The State demonstrated that Marquise
      arrived at Ramon’s residence with Latoya less than forty-eight hours after
      Ramon had struck Latoya in an argument. Latoya left that argument with
      the admonition that she would return, and when she did return, Marquise,
      Billy, and the unknown man were with her.

              The men immediately proceeded to attack Ramon. Marquise was
      the first to attack him, and the men continued to beat Ramon as Tiara pulled
      him into the residence and Ramon “balled up” his body to protect himself.
      Transcript at 39. Further, at least two of the men were armed, and
      Marquise held one of the firearms at the time Ramon was murdered.

             The State’s evidence sufficiently demonstrates that Marquise
      intended to inflict injury to Ramon that would have created a substantial
      risk of either his death or disfigurement and that Marquise took a
      substantial step toward the commission of that crime. That the attack was
      brought to an unexpected halt by the unknown man shooting Ramon does
      not absolve Marquise of liability for his own conduct. . . .


                                           4
Id. In two footnotes, we stated that “[t]here is no dispute that attempted aggravated

battery is a lesser included offense to murder” and that “we do not read the Appellant’s

Brief to raise a ‘variance’ argument.” Id. at *1 n.4 & *2 n.6.

       Two weeks after this panel handed down Marquise Lee I, another panel of this

court unanimously affirmed Latoya’s conviction for attempted aggravated battery and her

fifteen-year sentence. Regarding Latoya’s challenge to her conviction, that panel held:

       Here the evidence shows that [Latoya] was angry with Gude after their
       altercation and threatened him that she would be back. Tr. p. 32. Two days
       later, [Latoya] returned to Robertson’s home with Marquise, Young, and
       the unidentified shooter. Id. at 35. Marquise began “throwing punches” at
       Gude and appeared to be getting the better of him. Id. at 36. Moreover, the
       evidence demonstrates that Marquise and Young came to Robertson’s
       apartment armed with a handgun. Id. at 43-44. After Robertson pulled
       Gude inside, Young and Marquise followed, and Young handed a gun and
       clip to Marquise. Id. Under these circumstances, a reasonable trier of fact
       could determine that [Latoya] committed class B aggravated battery.
       Therefore, we conclude that the evidence was sufficient to support
       [Latoya’s] conviction.

Latoya Lee, 2014 WL 2587313 at *3. As with Marquise, Latoya did not argue on appeal

that attempted aggravated battery was not a lesser included offense to murder, nor did she

raise an argument that the State’s evidence at trial was an impermissible variance from

the charging information.

       On June 12, a third panel, also unanimous, handed down its opinion in Young v.

State. The Young panel held that “the facts alleged in the charging information must be

the same facts that form the basis for a lesser included offense.” Young, ___ N.E.3d ___,

2014 WL 2616189 at *3. The Young panel then concluded that

       [t]he trial court found the alleged facts underlying Young’s murder charge
       were not proved beyond a reasonable doubt, and his conviction for
       attempted aggravated battery was based on other evidence presented at trial.
                                             5
         Thus, Young’s attempted aggravated battery conviction is not a lesser
         included offense of the murder charge.

Id.     Thus, the Young panel reversed Young’s conviction for attempted aggravated

battery. Marquise’s petition for rehearing ensued.

                            DISCUSSION AND DECISION

         In his petition for rehearing, Marquise asks that we vacate our prior decision,

follow the Young panel, and reverse his conviction for not having been properly charged

by the State. The State responds on several fronts, including that Marquise has not

preserved this issue for appellate review. Marquise responds that, since Young received

the benefit of appellate review without a proper objection to the trial court, he should as

well.

         There is no question that Marquise has not preserved this issue for our review.

See Marquise Lee I, 2014 WL 2187702 at *1 n.4. But, while the Young panel recognized

that Young made “no explicit objection” to the trial court’s judgment for attempted

aggravated battery, that panel nonetheless considered the matter preserved for appellate

review. ___ N.E.3d ___, 2014 WL 2616189 at *2 n.5. In particular, the panel criticized

the trial court for not “present[ing] a clear opportunity for a timely objection,” and the

Young panel did not set out our standard of review under the fundamental error doctrine.

Id.

         We disagree with the Young panel that the trial court did not present the

defendants with a clear opportunity for a timely objection. Upon granting the defendants’

motion for involuntary dismissal of the murder and conspiracy to commit murder

charges, the trial court explicitly informed the defendants that it would consider lesser
                                            6
included offenses and, specifically, “all the possible batteries on the table.” Tr. at 268.

This would have been an ideal time for any one of the defendants to lodge an objection

and request a continuance to prepare their case accordingly. And our Supreme Court has

repeatedly stated that, when a defendant fails to object and request a continuance on the

grounds that a putative lesser charge is not included in the original charge, “the defendant

is not entitled to appellate relief.” Miller v. State, 753 N.E.2d 1284, 1287-88 (Ind. 2001);

see also Wright v. State, 690 N.E.2d 1098, 1104 (Ind. 1997) (“Had defendant seriously

believed that the amendment of the charges prejudiced him in any way, he should have

requested a continuance to further evaluate and prepare his case in light of the

amendments. Having failed [to do so], defendant has waived this issue on appeal.”).

And even if Marquise’s argument were available for our review in Marquise Lee I,

Marquise abandoned it on appeal. See 2014 WL 2187702 at *1 n.4.

       Nonetheless, the Young panel expressly noted that it “would find fundamental

error” on Young’s argument that attempted aggravated battery was not a lesser included

offense to murder. Young, ___ N.E.3d ___, 2014 WL 2616189 at *2 n.5. As such, we

consider Marquise’s argument on rehearing under the fundamental error doctrine. As

Indiana’s appellate courts have often explained:

       Failure to object at trial waives an issue on appeal unless the appellant can
       show fundamental error—that is, “an error that ma[de] a fair trial
       impossible or constitute[d a] clearly blatant violation[] of basic and
       elementary principles of due process presenting an undeniable and
       substantial potential for harm.” Clark v. State, 915 N.E.2d 126, 131 (Ind.
       2009). That exception is “extremely narrow,” Benson v. State, 762 N.E.2d
       748, 755 (Ind. 2002), and reaches only errors that are so blatant that the
       trial judge should have taken action sua sponte. Brewington v. State, 7
       N.E.3d 946, 974 (Ind. 2014); accord Whiting v. State, 969 N.E.2d 24, 34
       (Ind. 2012) (“A finding of fundamental error essentially means that the trial
                                             7
      judge erred . . . by not acting when he or she should have . . . .”). In sum,
      fundamental error is a daunting standard that applies “only in egregious
      circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003).

Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014) (alterations and omissions original).

      Whether the fact-finder may consider an offense as lesser included to the charged

offense requires the following considerations:

      First, a trial court must compare the statute defining the crime charged with
      the statute defining the alleged lesser included offense. If (a) the alleged
      lesser included offense may be established “by proof of the same material
      elements or less than all the material elements” defining the crime charged,
      or (b) the only feature distinguishing the alleged lesser included offense
      from the crime charged is that a lesser culpability is required to establish
      the commission of the lesser offense, then the alleged lesser included
      offense is inherently included in the crime charged. If an offense is
      inherently included in the crime charged, then a trial court should proceed
      to step three below. We emphasize here that the wording of a charging
      instrument never forecloses or precludes an instruction on an inherently
      lesser included offense.

              Second, if a trial court determines that an alleged lesser included
      offense is not inherently included in the crime charged under step one, then
      it must compare the statute defining the alleged lesser included offense with
      the charging instrument in the case. If 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, and the trial court should proceed
      to step three below. If the alleged lesser included offense is neither
      inherently nor factually included in the crime charged, then the trial court
      should not give a requested instruction on the alleged lesser included
      offense.

             Third, if a trial court has determined that an alleged lesser included
      offense is either inherently or factually included in the crime charged, it
      must look at the evidence presented in the case by both parties. If there is a
      serious evidentiary dispute about the element or elements distinguishing the
      greater from the lesser offense and if, in view of this dispute, a jury could
      conclude that the lesser offense was committed but not the greater, then it is
      reversible error for a trial court not to give an instruction, when requested,
      on the inherently or factually included lesser offense. If the evidence does
      not so support the giving of a requested instruction on an inherently or
                                            8
         factually included lesser offense, then a trial court should not give the
         requested instruction.

Wright v. State, 658 N.E.2d 563, 566-67 (Ind. 1995) (emphases original; citations and

footnotes omitted).1

         Although it is not clear whether the trial court considered attempted aggravated

battery to be inherently or factually included within the State’s charge of murder, we

need only consider whether attempted aggravated battery is inherently included within a

charge of murder. On this issue, the Young panel said only that, “[a]t first blush, it would

seem attempted aggravated battery could be an inherently lesser included offense of

murder.” ___ N.E.3d ___, 2014 WL 2616189 at *3. In a footnote, the Young panel

added:

         case law on that point is somewhat conflicting. Compare Ratcliffe v. State,
         553 N.E.2d 1208, 1212 (Ind. 1990) (“Battery is not inherently a lesser
         included offense of murder.”) with Salone v. State, 652 N.E.2d 552, 558
         (Ind. Ct. App. 1995) (holding battery is an inherently lesser included
         offense of aggravated battery), trans. denied, and Meriweather v. State, 659
         N.E.2d 133, 141-42 (Ind. Ct. App. 1995) (holding attempted aggravated
         battery is an inherently lesser included offense of attempted murder), trans.
         denied, abrogated in part on other grounds by Wright, 658 N.E.2d at 570.

Id. at *3 n.7. But then the panel held that, “under the circumstances of this particular

case, a conviction of attempted aggravated battery as a lesser included offense is not

appropriate.” Id. at *3.

         We disagree with the Young panel’s conclusion that it is not appropriate on these

facts to determine that attempted aggravated battery is an inherently lesser included

         1
          Because the trial court entered judgment against Marquise on a lesser included offense, we need
not analyze the third prong of the Wright test, although we include it here for completeness. Further, it is
of no moment that the Wright test discusses instructions to the jury whereas, here, Marquise was tried to
the bench. See, e.g., Miller, 753 N.E.2d at 1288.

                                                     9
offense to murder. If it is inherently included, then “the original information already

encompasses charges of both” the greater and the lesser offenses. State v. O’Grady, 876

N.E.2d 763, 767 (Ind. Ct. App. 2007). Thus, there is no due process concern, and “the

wording of a charging instrument never forecloses or precludes an instruction on an

inherently lesser included offense.” Wright, 658 N.E.2d at 567 (emphasis original).

       Again, we need only decide whether the trial court’s apparent assessment that

attempted aggravated battery is an inherently lesser included offense to murder was

“blatant[ly]” incorrect. See Knapp, 9 N.E.3d at 1281. It was not. As the Young panel

recognized, “[a]t first blush, it would seem attempted aggravated battery” is an inherently

included lesser offense to murder. ___ N.E.3d ___, 2014 WL 2616189 at *3. This fact

alone demonstrates that the trial court did not commit an “egregious” and “blatant” error.

Knapp, 9 N.E.3d at 1281.

       To be sure, however, this court has long held that attempted aggravated battery is

an inherently lesser included offense to attempted murder. Meriweather, 659 N.E.2d at

141-42. As we explained in Meriweather:

       Two reasons compel our decision that attempted aggravated battery is an
       inherently lesser included offense of attempted murder. First, one cannot
       take a substantial step toward knowingly or intentionally killing another
       person without necessarily taking a substantial step toward inflicting an
       injury which creates a substantial risk of death or one that would cause the
       kind of permanent injury required to gain conviction for attempted
       aggravated battery. Quite logically, a murder victim must necessarily die
       from some type of injury which creates a substantial risk of death.

              Second . . . the crime of attempted aggravated battery necessarily
       contains all of the statutory elements of attempted murder except for an
       intent to kill. In reality, the distinction between attempted aggravated
       battery and attempted murder is seemingly minute. . . . [I]n the abstract, the
       only distinguishing characteristic between attempted murder and attempted
                                            10
        aggravated battery is the resulting harm the assailant intends to inflict upon
        his or her victim. An assailant attempting murder has an intent to kill,
        whereas an assailant attempting the crime of aggravated battery has an
        intent only to inflict an injury which creates a substantial risk of death or
        one that would permanently disfigure or impair, but not necessarily cause
        death. . . . Again, the element of intent is not to be considered as
        distinguishing in determining whether one offense is necessarily included
        in another.

Id. And it should go without saying that attempted murder is an inherently lesser

included offense to murder. Ledesma v. State, 761 N.E.2d 896, 899 (Ind. Ct. App. 2002).

Thus, the trial court did not commit fundamental error when it entered judgment against

Marquise for attempted aggravated battery as an inherently lesser included offense to the

charge of murder.2

        As in Marquise Lee I, we do not read Marquise’s argument in his petition for

rehearing to be that the State’s evidence against him amounted to an impermissible

variance from the charging information. See 2014 WL 2187702 at *2 n.6; see also

Young, ___ N.E.3d ___, 2014 WL 2616189 at *3 (refusing to characterize the dispositive

issue on appeal as a variance argument). Neither does either side ask this court to assess

the trial court’s decision here under Fajardo v. State, 859 N.E.2d 1201, 1205 (Ind. 2007),

superseded by statute on other grounds, regarding amendments to a charging information.

As such, these issues are not before us on this petition for rehearing.




        2
            Contrary to the Young panel, we think it is of no moment that our supreme court has held that
“[b]attery is not inherently a lesser included offense to murder.” Ratcliffe, 553 N.E.2d at 1212. First,
Marquise was not convicted of battery but attempted aggravated battery. And, second, Ratcliffe was
decided following pre-Wright case law, which the court in Wright criticized for causing “confusion.”
Wright, 658 N.E.2d at 567 (criticizing Lawrence v. State, 268 Ind. 330, 375 N.E.2d 208 (1978));
Ratcliffe, 553 N.E.2d at 1211 (following Lawrence). In any event, our holding here is simply that the
trial court did not commit fundamental error when it acted in accordance with Meriweather and Ledesma.
                                                   11
       In sum, we decline Marquise’s request to follow the reasoning of the Young panel.

We hold that Marquise did not preserve this issue for appellate review and that the trial

court did not commit fundamental error when it entered judgment against Marquise for

attempted aggravated battery as an inherently lesser included offense to the State’s charge

of murder. As such, we grant Marquise’s petition for rehearing and we affirm our prior

decision.

       Affirmed.

VAIDIK, C.J., and BROWN, J., concur.




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