concurring in result.
I agree that the judgment of the trial court should be affirmed. However that is so only because of the state of the record before us. Otherwise, it appears to me the same analyses that resulted in the reversal of Anthony Hopkins' conviction for the attempted murder of Martinez compel the same result for Edward Hopkins' convietion for the attempted murder of MeCarty.
As in Anthony's case, here the trial court failed to instruct the jury on the specific intent necessary to establish accomplice liability for attempted murder. Similarly, as with the case of Anthony, here the instructions did not inform the jury that in order to convict it was required to find .that defendant Edward Hopkins intended to kill McCarty when he took the steps that helped Anthony attempt to kill MeceCarty. Also as in Anthony's case, here defendant Edward Hopkins did not object to the trial court's instrue-tions, nor did he tender his own correct instructions.
In the case of Anthony, this court found that the failure of the trial court to instruct the jury regarding specific intent was fundamental error. Here, however, the majority distinguishes the two cases on the following grounds:
In Anthony's situation, we found that because Anthony was upstairs when Defendant shot Martinez, it was simply too attenuated to say that Anthony was an accomplice to the attempted murder of Martinez without the jury having been instructed that it was required to find beyond a reasonable doubt that Anthony possessed the specific intent to kill Martinez. ... Defendant's situation is entirely different.
Op. at 991 (citation omitted). It is true that Edward Hopkins shot Martinez while Anthony was upstairs searching for drugs and money. However, that was not the basis on which this court reversed Anthony's attempted murder conviction. Rather, we identified those instances in which this court has either found or not found the existence of fundamental error where trial courts have erroneously instructed juries on the elements of attempted murder. Hopkins v. State, 759 N.E.2d 633, 638 (Ind.2001). And we noted specifically the importance of whether a defendant's "intent" was at issue. See id. (quoting Swallows v. State, 674 N.E.2d 1317, 1318 (Ind.1996) for the proposition that the trial court did not commit fundamental error where the defense relied on identity and "the intent of the Defendant was not in issue"). We acknowledged as a fact that Anthony's "intent to kill Martinez was clearly at issue." Id. Accordingly we said: "[Blecause Defendant's intent to kill Martinez was squarely at issue and because the jury was not properly instructed that it was required to find beyond a reasonable doubt that Defendant possessed the specific intent to kill Martinez, we are unable to affirm the trial court's judgment on this count." Id. at 639.
If Edward Hopkins' intent was an issue at trial, then Edward Hopkins is entitled to a reversal of the attempted murder conviction for the same reasons that his co-defendant brother was entitled to reversal. *993The problem in this case, however, is that neither in his brief before the Court of Appeals, nor in his transfer brief before this Court, does Edward Hopkins mention anything at all about his intent with respect to McCarty or whether his intent was an issue at trial. Instead, he merely complains that the same flawed instruction that resulted in Anthony receiving relief entitles him to relief as well. That is not enough. Perhaps Edward Hopkins can support his claim through post-conviction proceedings by establishing the necessary factual record. On this record however he is entitled to no relief. Therefore, I agree that the judgment of the trial court should be affirmed and thus coneur in the result reached by the majority.