dissenting.
I respectfully dissent.
Recently, our Supreme Court reaffirmed the long standing doctrine concerning convictions for lesser included offenses. In Maynard v. State (1986), Ind., 490 N.E.2d 762, Justice Dickson writing for a unanimous court, said
Defendant contends he was convicted of an offense not properly includable within the criminal conduct charged. Indiana law recognizes two types of included offenses: First the inherently included offense which is necessarily committed in the course of committing the greater offense: and, second, those offenses “committed by reason of the manner in which the greater offense was committed,” if within the factual allegations contained in the charging instrument. Jones v. State (1982), Ind., 438 N.E.2d 972.
Maynard, supra, 490 N.E.2d at 763.
This case involves the second type of included offense wherein the greater offense is committed in a manner which necessarily includes commission of the lesser offense. Here, the charging information states
*1365* * * on or about the 5th day of March, A.D. 1985, at and in the County of Marion in the State of Indiana, did unlawfully and knowingly possess, with the intent to deliver, a Controlled Substance, to-wit: MARIJUANA, of an aggregate weight of MORE THAN THIRTY (30) GRAMS, ... (Emphasis added).
(R. 5).
IND.CODE 35-48-4-10 (dealing in marijuana, hash oil, or hashish) states:
(a) A person who:
(1) knowingly or intentionally manufactures or delivers marijuana, hash oil, or hashish, pure or adulterated; or (2) possesses, with intent to manufacture or deliver, marijuana, hash oil, or hashish, pure or adulterated;
commits dealing in marijuana, hash oil, or hashish, a Class A misdemeanor. (Emphasis added).
IC 35-48-4-10.
IND.CODE 35-48-4-11 (the marijuana possession statute) states in pertinent part:
A person who:
(1) knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, or hashish;
* * ’ sft * * *
commits possession of marijuana, hash oil, or hashish, a Class A misdemean-or_ (Emphasis added).
IC 35-48-4-11.
Possession differs from dealing, the offense charged in this case, only as to the element of possessing with intent to deal. Here, the offense of possession is necessarily committed if the offense of dealing in marijuana is committed as charged by the information in this case.
Contrary to the majority’s holding, Roddy v. State (1979), 182 Ind.App. 156, 394 N.E.2d 1098; is still good law in Indiana when, as here, the lesser offense is committed in a manner in which the greater offense is by necessity committed. While some confusion on the subject may have arisen subsequent to Roddy and Jones, the unanimous decision in Maynard and Jones v. State, infra, impliedly restricts each of our Supreme Court’s decisions in Sills and Compton to their own facts. Maynard and Jones now sound the Court’s “concert A” on this issue.
Due process requires a defendant be given notice of the crime or crimes with which he is charged. A defendant cannot be convicted of a crime absent sufficient notice in the charging information. Ind. Const. Art. 1 § 13; Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686, 690, appeal dismissed (1973), 412 U.S. 925, 93 S.Ct. 2755, 37 L.Ed.2d 152.
The charging information in this case notified defendants they were charged with possession of marijuana. The information could not have misled the defendants and they make no claim they were misled. Clearly, no due process violation occurred in this case.
The State has absolute discretion to determine the crime(s) with which the defendant will be charged. Jones, supra. The State may charge the defendant with a crime and then ask the court to instruct the jury on lesser included offenses at the close of the trial.1
Jones, supra, should control the disposition of this case. It says
Consistency in this area of our law is imperative, for the very manner in which an information is drafted depends upon the case law. The State may wish to seek conviction for a lesser offense, depending upon the ultimate strength of its evidence. By proper drafting, it can preserve the option to seek conviction for the lesser offense, which, if charged within the body of the information, serves the due process guarantee of notice to defendant. Blackburn v. State (1973) 260 Ind. 5, 291 N.E.2d 686, appeal *1366dismissed, (1973) 412 U.S. 925, 93 S.Ct. 2755, 37 L.Ed.2d 152. (Emphasis supplied).
Jones, supra, 438 N.E.2d at 975.
The two Indiana Supreme Court cases cited as authority by the majority are clearly distinguishable from the present case. Both concern the trial court’s failure to instruct the jury on lesser offenses. They are inapplicable to the situation where a defendant is convicted of a lesser included offense.
In the first case, Compton v. State (1984), Ind., 465 N.E.2d 711 the defendant was convicted of theft. The trial court refused to instruct the jury on the lesser included offenses of criminal trespass and criminal conversion as defendant had requested. The Supreme Court upheld the conviction holding a review of the charging instrument and the evidence demonstrated the prosecution did not intend to charge these lesser offenses. In so holding the court said “thus, notwithstanding that the evidence in this case may have supported an instruction on a lesser offense, defendant was not entitled to have the instructions given to the jury.” Id. at 713.
Clearly, that holding does not preclude the conviction for the lesser included offenses in this case. In fact, the language infers, although the point is not addressed, the defendant could have been convicted of the lesser offenses had the charges and the evidence fulfilled the inherently included requirements.
In the second case, Sills v. State (1984), Ind., 463 N.E.2d 228; the defendant complained the court refused to instruct the jury on manslaughter, a lesser included offense of murder, with which he was charged and convicted.
The only defense raised by Sills was insanity. No evidence was presented to dispute any of the elements of murder. Because the defendant failed to dispute any of the elements distinguishing murder from manslaughter, the court properly refused instructions on manslaughter. Id.
Recently, the Supreme Court reaffirmed the rule applicable in such cases. It said
[I]f no genuine dispute exists as to evidence of the elements which distinguish the greater offense from the lesser offense, the defendant is either guilty of the offense charged or not guilty at all.
Taylor v. State (1986), Ind., 495 N.E.2d 710, 714. If, however, the evidence concerning the elements distinguishing the greater offense from the lesser is in genuine dispute, the defendant may be found guilty of the inherent lesser included offense. Jones v. State (1986), Ind., 491 N.E.2d 980, 982.
Compton and Sills address the issue of whether it is proper to give an instruction when requested by the defendant on a lesser included offense. This is not the issue in this case.
Crawford and Wilburn were charged with possessing and dealing in marijuana. Only evidence concerning possession was presented, no evidence was presented that they had the intent to deal in marijuana. Thus, it was proper for the court to convict them of the lesser offense of possession.
I would affirm the trial court on all counts.
. This rule is derived from IC 35-1-39-2: One offense included in another — in all other cases, the defendant may be found guilty of an offense, the commission of which is necessarily included in that with which he is charged in the indictment or information. IC 35-1-39-2 Burns 1975 now repealed.