dissenting as to issue II. A.
I respectfully dissent. I believe that the trial court's erroneous attempted murder instruction constituted fundamental error and that neither of the recognized exceptions apply. I would therefore reverse Sanders' conviction for attempted murder.
Both this court and our supreme court have repeatedly held that an instruction allowing a jury to convict for attempted murder upon anything less than proof of specific intent to kill is fundamental error. See, e.g., Spradlin v. State,2 569 N.E.2d 948, 950 (Ind.1991) ("Henceforth, we hold that an 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."); Simmons v. State, 642 N.E.2d 511, 512-13 (Ind.1994) ("Although one may be guilty of murder, under our statute, without entertaining a specific intent to kill the victim, he cannot be guilty of attempted murder|[.]") (citing Smith v. State, 459 N.E.2d 355, 358 (Ind.1984)).
Our supreme court has identified two factual situations in which a Spradlin error can be considered harmless:
Instances of Spradlin error are not per se reversible. Indeed, we have held in some cases, typically post-conviction relief appeals, that error of this sort was not fundamental especially when the intent of the perpetrator was not a central issue at trial, or if the wording of the instruction sufficiently suggested the requirement of intent to kill.
Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind.1999) (citations omitted). I do not believe that either enumerated exception applies in the instant case.
The first Spradlin exception does not apply because Sanders' intent was at issue at his trial; indeed, it seems to have been the only issue. Sanders readily admitted to driving the car that night and never denied running over the victims, but he *716testified that he had suffered from a blackout that rendered him- unable to remember anything about the incident. He presented evidence that suggested that he was unable to form the specific intent to kill during his blackout. The fact that the jury was not convinced by this argument, or indeed even that his intent to kill was established by overwhelming evidence,3 does not mean that his intent was not at issue.
Neither does the second Spradlin exeeption apply. I conclude that, read as whole, the instructions did not adequately inform the jury that it was required to find that Sanders specifically intended to kill Sharon Pratchett before it could convict him of attempted murder. The post-conviction court concluded that instruction number six, concerning transferred intent, cured the Spradlin error, but I disagree. Instruction six reads as follows:
When one intends to kill a certain person and by mistake or inadvertence kills another person, in the eyes of the law, his intent is transferred from the person to whom it was directed to the person actually killed. It is not a defense that the defendant intended to kill Sharon Pratchett but instead killed [W.A.H.].
This instruction provides only that if the jury finds that Sanders intended to kill Sharon, then that intent may be transferred to the actual victim. Instruction six merely recites the doctrine of transferred intent and fails to instruct the jury that it must find that Sanders had the specific intent to kill before it can convict him of attempted murder. The Spradlin error remains uncured, and I would therefore reverse Sanders' conviction for attempted murder. In all other respects, I concur with the majority's disposition of the issues.
. Errors of this type are commonly referred to as "Spradlin errors."
. The majority seems io be attempting to create a new "overwhelming evidence" or "intent-to-kill-cannot-be-seriously-disputed" exception to Spradlin, concluding "that the absence of the specific intent element from the attempted murder instruction does not rise to the level of fundamental error because there was no question that Sanders intended to kill Pratchett." Sanders v. State, -- N.E.2d at --. However, our supreme court, in Swallows v. State, 674 N.E.2d 1317 (Ind.1996), quite clearly held that there is no "intent-to-kill-cannot-be-seriously-disputed" exception to Spradlin:
Judge Najam asks that we reexamine our decisions holding that in post-conviction attempted murder cases the failure to instruct on specific intent constitutes fundamental error even where the defendant's intent to kill cannot be seriously disputed. While this holding has been attributed to our decisions, our case law actually requires the opposite conclusion.
Id. at 1318 (citations omitted) (emphases added). The supreme court's position is clear, and "[wle are obliged to follow precedents established by the Indiana Supreme Court." Patton v. State, 507 N.E.2d 624, 626 (Ind.Ct.App.1987), trans. denied (1990). Whatever the potential merits of an additional "intent-to-kill-cannot-be-seriously-disputed" exception to Spradlin, "it is not the province of this court to address those concerns." Id.