dissenting.
I concur with respect to Parts I and II of the majority opinion. I respectfully dissent, however, with respect to Part III.
In Tingle v. State, 632 N.E.2d 345 (Ind.1994), our Supreme Court addressed the issue of the proof required to establish the element of "substantial risk of death." In Tingle, the defendant and an accomplice went to the home of the seventy-two-year-old victim to use the telephone after the stolen car in which they were riding broke down. Eventually, Tingle's accomplice began to beat the victim with a taped-up socket handle. When the victim tried to resist, Tingle restrained the victim while the accomplice continued to beat him about the head. The victim was eventually tied up with a telephone cord. Tingle was convicted of Aggravated Battery and challenged the sufficiency of the evidence upon appeal.
In Tingle, the State's expert medical witness testified that the victim's injuries might have caused a possibility but not a substantial risk of death, that the observable facts and the treatment provided to the victim did not indicate that the victim was at a substantial risk of death, and that his earlier statement opining a substantial risk of death was, at most, mere speculation. The Court held that this evidence was insufficient to establish substantial risk of death.4 Id. at 354.
In the present case, the State failed to offer any opinion, medical or otherwise, indicating that Winters' injuries created a substantial risk of death. Nor did the State introduce into evidence any of Winters' medical records. The testimonial evidence revealed that Winters was stabbed in the upper-left side of his chest and, as a result, began to bleed and have difficulty breathing. Winters also went into and out of consciousness after being stabbed. Winters underwent surgery and remained hospitalized for five days. Winters also testified that, at the hospital, he was connected to a "lung machine." 'Transeript at 60. From this, one could reasonably infer that Winters could have died as a result of the injury he sustained. However, given the holding in Tingle, I am compelled to conclude that the evidence failed to establish that the injuries inflicted upon him by Wilcher resulted in a "substantial" risk of death.5 As noted by Wilcher, the evidence might have established that Winters suffered from serious permanent disfigure*119ment or protracted loss or impairment of the function of a bodily member or organ. Regardless, the State chose to allege that Wilcher injured Winters in a manner creating a substantial risk of death but failed to establish such beyond a reasonable doubt.6 Wilcher's conviction for Aggravated Battery should therefore be vacated.7
Nevertheless, when a conviction is reversed because the evidence is insufficient, we may remand to enter a judgment of conviction upon a lesser-included offense if the evidence is sufficient to support the lesser offense. See Cockrell v. State, 743 N.E.2d 799, 808 (Ind.Ct.App.2001) (reversing conviction of dealing in cocaine as a Class A felony but remanding with instructions to enter a judgment of conviction upon the lesser offense of dealing in cocaine as a Class B felony); Johnson v. State, 594 N.E.2d 817, 820-21 (Ind.Ct.App. 1992) (reversing conviction of dealing in cocaine but remanding with instructions to enter judgment of conviction upon lesser included offense of possession of cocaine); Isom v. State, 589 N.E.2d 245, 248 (Ind.Ct.App.1992) (same), trans. denied.
An offense is factually included in the crime charged if the means used to commit the crime charged as alleged in the charging instrument include all of the elements of the alleged lesser included offense. Wright v. State, 658 N.E.2d 563, 567 (Ind.1995). See also Johnson, 594 N.E.2d at 821.
Here, the charging information alleged that Wilcher "did knowingly inflict injury, that is: laceration to the heart, on another person, namely: Denton Winters, that created a substantial risk of death to Denton Winters,. by stabbing with a knife." App. *120at 21. A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner by means of a deadly weapon8 commits Battery as a Class C felony. Ind.Code § 85-42-2-l(a)(8) (Burns Code Ed. Supp.2001). Therefore, the manner in which the information in the present case alleged Aggravated Battery factually included the offense of Battery as a Class C felony.
The evidence established, and Wilcher does not deny, that he stabbed Winters in the chest with a knife as Winters attempted to break up a fight between Frost and Jamison. Thus, Wilcher touched Winters in a rude, insolent, or angry manner and did so by means of a deadly weapon, the knife. This is sufficient to prove Battery as a Class C felony. See Tingle, 632 N.E.2d at 354 (holding that, although the evidence of victim's injuries was insuffi-client to prove substantial risk of death element of aggravated battery, it did prove battery as a Class C felony). I would instruct the trial court to vacate the conviction for Aggravated Battery and to enter a judgment of conviction for Battery, as a Class C felony, and to resentence accordingly.
. The Tingle court also noted that there was no evidence of serious permanent disfigurement, which was alleged in the charging information in that case. Id. at 354.
. But see Beanblossom v. State, 530 N.E.2d 741, 742-43 (Ind.1988), wherein the victim received a blow to the back of the head which was forceful enough to knock him down to his hands and knees and to cause him to remain in a semiconscious state for a short period. The Court held that this evidence alone was sufficient to support a finding that the victim had sustained an injury which created a substantial risk of death within the purview of Indiana Code § 35-41-1-25, defining serious bodily injury. However, the Beanblossom Court also noted additional injuries suffered by the victim:
"'the bullet fired by appellant which struck [the victim]'s hearing aid and shattered causing laceration wounds to his head, his outer ear, and his inner ear was certainly sufficient to support the jury's finding that [the victim] had sustained an injury which created a substantial risk of death. There is ample evidence in this record to sustain a finding of serious bodily injury in the perpetration of a robbery." 530 N.E.2d at 743.
. The State had every opportunity to acquire and introduce evidence showing a substantial risk of death. It failed to do so.
The deficiencies in the State's proof was even suggested by the trial court:
"THE COURT: Who's THE NEXT [wit ness}? ©
MS. WOLFE: Denton Winters.
MR. BARATZ: The alleged victim in this matter. And what I'm moving to exclude is any testimony from him describing his injuries beyond what he would know of his own personal knowledge. In other words, I believe that when he describes the extent or the seriousness of his injury, he's going to be relating to the jury things that were told to him by someone else, perhaps a doctor or something like that, and I don't think he's the proper person. He certainly can describe his injury, describe his pain, those sorts of things but to go further and describe the internal actually the workings and the damage done, I don't believe that he's the proper witness to do that.
THE COURT: What's the basis of your objection?
MR. BARATZ: that he-what he would say would be based on hearsay and that there are other people who would have personal knowledge who are experts who would be able to describe it.
THE COURT: Ms. Wolfe.
MS. WOLFE: He can certainly tell what-the damage he suffered during his attack, that heart was lacerated. That's part of what he knows, it's his body and he can tell the jury what his injuries [were].
THE COURT: Do you have certified medical records?
MS. WOLFE: I do not.
THE COURT: Why not?
MS. WOLFE: I-
THE COURT: Are you planning on calling a physician?
MS. WOLFE: No." (Emphasis supplied.)
. Because, in my view, there was insufficient evidence to prove, beyond a reasonable doubt, the element of substantial risk of death, it is not necessary to determine whether the evidence did, or was required to, establish, as alleged, a laceration of Winters' heart. It may be noted, however, that as Wilcher observes, there was no evidence as to what internal damage was caused by the knife, the depth of the wound, or whether the wound extended to or lacerated the heart. The State does not dispute this observation but merely contends the "laceration to the heart" language in charging information is merely sur-plusage. Appellee's Brief at 5.
. A "deadly weapon" includes a weapon which, in the manner it is used, could ordinarily be used, or is intended to be used, is readily capable of causing serious bodily injury. Ind.Code § 34-41-1-8 (Burns Code Ed. Supp.2001). "Serious bodily injury" is in turn defined as bodily injury which creates a substantial risk of death, or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the function of a bodily member or organ; or (5) loss of a fetus. Ind.Code § 35-41-1-25 (Burns Code Ed. Repl.1998). Here, the evidence indicates that the knife was used in a manner readily capable of causing serious bodily injury as defined by statute.