dissenting.
I respectfully dissent. In cases since Spradlin v. State, 569 N.E.2d 948 (Ind.1991) our supreme court has consistently reaffirmed the rule that a jury instruction on attempted murder shall inform the jury that "the act must have been done with the specific intent to kill." Simmons v. State, 642 N.E.2d 511, 513 (Ind.1994). See also Beasley v. State, 643 N.E.2d 346, 348 (Ind.1994) (attempted murder instruction must include the required mens rea of specific intent); (Greer v. State, 643 N.E.2d 324, 326 (Ind.1994) (specific intent requirement vital in attempted murder instruction). As the court made clear in Taylor v. State, 616 N.E.2d 748 (Ind.1993) "[iJn an attempted murder case, it is reversible error not to instruct the jury that the defendant must have intended to murder the victim at the time the defendant committed the act alleged to have been a substantial step toward the commission of the crime of murder." Id.
I agree with the majority that the instructions in this case must be viewed through the lenses of fundamental error. This is so because Lawrence neither objected at trial to the erroneous instructions nor did he tender his own correct instructions. However, fundamental error may be avoided in the giving of an attempted murder instruction where the charging information or other instructions inform the jury that in order to convict, it must find that the defendant was "attempting to kill" the victim at the time of the attack. Jackson v. State, 575 N.E.2d 617, 621 (Ind.1991). It is true that in Jackson as here the critical issue at trial was not the defendant's intent. However our supreme court determined there was no fundamental error in that case because of the "attempting to kill" language. Indeed various decisions of this court have followed the Jackson rule and also refused to reverse a conviction based on fundamental error where the instructions contained similar language. See e.g. Lingler v. State, 640 N.E.2d 392 (Ind.Ct. App.1994); Wilson v. State, 611 N.E.2d 160 (Ind.Ct.App.1993) trans. denied; Holland v. State, 609 N.E.2d 429 (Ind.Ct.App.1993). In the case before us neither the instructions taken as a whole, nor the charging information informs the jury that in order to convict Lawrence of attempted murder the jury must find he had the specific intent to kill the victim. Under what appears to be settled authority the instructions are fundamentally erroneous thus requiring reversal of the attempted murder conviction. Lawrence's petition for post-conviction relief should be granted and this cause remanded for a new trial on attempted murder.