dissenting
I believe Craig was improperly convicted of criminal recklessness as lesser included offenses of six counts of attempted murder, and I must therefore respectfully dissent.
Craig was charged with eight counts of attempted murder. Other than differing in the names of the victims, Counts II through VIII alleged that:
SANTANA CRAIG, on or about April 28, 1997, did attempt to commit the crime of Murder, which is: to knowingly or intentionally kill another human being, namely: [victim], by engaging in conduct, that is: shooting at and toward the person of [victim], with the intent to kill [victim], by means of a deadly weapon, that is: a handgun, which constituted a substantial step toward the commission of said crime of Murder.
(R. at 33-36.)
The jury was instructed that to convict Craig of attempted murder, the State had to prove that Craig was “1) acting with the specific intent to kill, 2) by knowingly or intentionally, 3) shooting a deadly weapon, that is, a handgun, 4) at and toward [eight different people], 5) which was conduct constituting a substantial step toward the commission of said crime of murder.” (Id. at 154.)
The jury was also instructed that Aggravated Battery, a Class B felony, as to Count I, and Criminal Recklessness, a Class C felony, as to Counts I, II, III, IV, V, VI, VII and VIII, were included offenses of attempted murder.4 (Id. at 156.) The jury was instructed that in order to find Craig guilty of criminal recklessness, *447the State would have to prove that Craig “1) recklessly, knowingly or intentionally, 2) performed an act that created a substantial risk of bodily injury, 3) to [eight different people] and 4) the Defendant performed the act while armed with a deadly weapon.” (Id. at 158.)
I believe the trial court erred in instructing the jury that criminal recklessness was a lesser included offense of attempted murder. The majority correctly notes that Craig’s conduct created the “substantial risk of bodily harm” necessary to support a criminal recklessness conviction. Ind.Code § 35-42-2-2(b). However, I cannot agree with its conclusion that criminal recklessness was a factually included lesser offense of the eight counts charging Craig with attempted murder, because the State’s charging informations and the evidence presented at trial do not permit the inference that Craig acted with disregard for the consequences of his actions.
In Shoup v. State, 570 N.E.2d 1298, 1305 (Ind.Ct.App.1991), we noted that in order for criminal recklessness to be a lesser included offense of an intent crime (there, battery), the charging instrument had to. allege facts that showed that the touching was done with a disregard of the harm that might occur. There, the charging instrument alleged that Shoup knowingly touched a child in a rude, insolent or angry manner when he struck the child. We found a requested instruction on criminal recklessness was properly refused because “[t]here is nothing in these charges which indicated] a disregard for the consequences .... To the contrary, they imply that recognition or knowledge of probable consequences was present.” Id.
Except for Count I, the attempted murder charges against Craig each alleged that Craig attempted to knowingly or intentionally kill each of the persons by firing a handgun “at and toward” those individuals 5 with a handgun, with the intent to kill each. Like the charges in Shoup, these charges assert that recognition or knowledge of probable consequences was present and cannot be read to “indicate [Craig’s] disregard for the consequences.”
Further, the testimony at trial established Craig’s intent to kill someone. Craig first began shooting at the back of the van, toward the tires. When he missed, he said “if I can’t hit them tires, I’m shooting something in that damned van.” (R. at 266.) I believe criminal recklessness thus could not, in the case before us, be a factually lesser included offense of the attempted murder charges against Craig and the trial court erred in so instructing the jury. I would therefore vacate Craig’s six convictions of criminal recklessness.
. A review of the record does not reveal any specific objection from the State to instructing the jury as to criminal recklessness. There was a colloquy between counsel with respect to giving a criminal recklessness instruction on all eight counts. The prosecutor staled: "State would object. I think the crim[inal] reck[lessness] would go to the other seven people in the car that were not hit in the head with a bullet. I think aggravated battery is certainly the count that is the lesser included of the attempt murder of DeMerr *447Lee. I don’t think he’s entitled to a criminal recklessness instruction.” (R. at 789.) It thus appears that the State was objecting only to the giving of a criminal recklessness instruction for Count I. This is of no import, as Craig was convicted of aggravated battery on Count I.
. The assertion in Count I is that he fired "at and against”.