(concurring in part and dissenting in part).
{47} There is a profound difference between reviewing a verdict and producing a verdict. I join the majority in reversing Defendant’s conviction for insufficient evidence; it was impossible for him to commit crimes in violation of a discharge permit when no such permit legally existed. We correctly decided that the evidence was insufficient as a matter of law to sustain those convictions. A directed verdict on the charges would therefore have been proper.
{48} JL-rdspectfully dissent from the majority’s 'accepting the invitation in the State’s supplemental brief to now, in the face of our reversal of the substantive charge, convict on a “lesser” offense by adopting what the Mississippi Supreme Court, in its 5-4 majority opinion, called the “direct remand rule,” Shields, 722 So.2d at 585, or what the federal system knows as the “Allison Rule.” Allison v. United States, 409 F.2d 445, 451 (D.C.Cir.1969); see also Rutledge, 517 U.S. at 306, 116 S.Ct. 1241. Under certain circumstances, this rule allows appellate courts to remand a case for imposition of conviction and sentencing upon a lesser included offense when a defendant’s conviction of a greater offense is invalidated on appeal for insufficient evidence. In this case, it allows the State to inject an issue they consciously waived at trial into their appeal, and we deliver a conviction on a charge they did not seek. When we have found the evidence insufficient as a matter of law to support the jury’s own verdict in the case, we should not be quick to render verdicts of our own on new and different charges.
{49} Defendant has rights to notice of the charges against him and trial of those charges to a jury under both the U.S. and New Mexico Constitutions. See U.S. Const, amend. VI; N.M. Const, art II, §§ 12, 14 and 18. He also has the right to have the facts developed and considered before a properly instructed fact-finding body, rather than having a fact-reviewing body interpose itself in the process of determining guilt of uncharged crimes.
{50} I am not convinced that attempt is a proper lesser included offense in this case. I am, however, unequivocally convinced that it is not a proper function of an appellate court to depart from reviewing the sufficiency of evidence supporting a conviction and impose the effect of that evidence on an entirely new crime that the State did not charge below and for which Defendant had no notice. The jurisdictions are split on this issue, and I believe that New Mexico should not follow cases like Allison and Shields, but rather we should follow cases such as Collier, 999 S.W.2d at 782 and State v. Myers, 158 Wis.2d 356, 461 N.W.2d 777, 782 (1990) (stating that when a defendant is convicted of an uncharged crime on appeal “the state is in effect asking the appellate court to give it the benefit of jury instructions it failed to request at trial”).
Where the State Requests no Jury Instruction on Attempt at Trial, They have Waived Prosecution of the Charge and Failed to Preserve it for Consideration on Appeal
{51} Amending the indictment to charge attempt was only one option open to the State at trial that they chose not to exercise. The other was to seek an instruction to the jury on a lesser included offense. The State, having chosen not to pursue attempt by amendment to the indictment, further chose at trial not to pursue a charge of attempt by requesting that the jury be instructed on attempt to violate the permit.
{52} Defendant urges that we hold that he cannot be found guilty of attempt unless that charge has been properly submitted to the jury as a lesser included instruction. The majority have declined to do so, stating that it would serve no purpose, because the evidence is unequivocal, and attempt is necessarily included as a part of the greater offense, and its elements are necessarily proven. The history of lesser included offenses, and their purpose in enabling the jury to distinguish between different charges where the evidence is weak shows the importance of this consideration.
Jury Instructions Protect Fundamental Due Process Interests — They Are Not Incidental to “Gamesmanship”
{53} The majority states that they are unable to understand “why instruction on a lesser offense” is “relevant when a jury finds a defendant guilty of the greater offense and thus may not reach the lesser.” Majority opinion, ¶ 21. Simply put, guilt of the lesser offense might be the correct verdict for the case, as the majority hold, yet without an instruction on the lesser included offense, the jury convicts of a greater offense for which the evidence is insufficient to sustain the verdict. The issue involves the fact illustrated in Haynie that the jury had the opportunity to consider the merits of a greater charge against the lesser as they were instructed and reach a decision as to the relative merits of each. Haynie, 116 N.M. at 748, 867 P.2d at 418. Accordingly, they made their considered determination between the charges based on proof beyond a reasonable doubt.
{54} As stated in Beck v. Alabama, 447 U.S. 625, 634, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), “providing the jury with the ‘third option’ of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard.” This protects the rights of the accused by allowing the jury to conform the verdict more accurately to the evidence than when presented with a single option for conviction. Id.; see also State v. Andrade, 1998-NMCA-031, ¶ 11, 124 N.M. 690, 954 P.2d 755 (stating that a lesser included offense instruction is a procedural safeguard for the defendant where a jury, confronted with an all-or-nothing choice, may wrongly convict of the greater crime because they believe the defendant committed a crime (the lesser included offense) and an acquittal would be unacceptable). Beck states this rationale quite clearly:
True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction — in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory.
Beck, 447 U.S. at 634, 100 S.Ct. 2382 (internal quotation marks and citation omitted). Therefore there is no reason for this Court to go where no prosecutor went in this case.
When the State Decided Not to Request a Lesser Included Instruction, it Precluded Our Review of a Lesser Included Offense
{55} In this case, the State chose to take a “go for broke” position. For the State to appeal to us for help because they did not ask to have the jury consider attempt as a lesser offense would require the State to have tendered a correct instruction on attempt at trial. Rule 5-608(D) NMRA 2003. Having failed in that regard, they now ask us to create a lesser offense they did not seek from a guilty verdict reversed for insufficient evidence. See Collier, 999 S.W.2d at 782. “The state is asking us to rescue it from a trial strategy that went awry.” Id. (quoting Myers, 461 N.W.2d at 782); State v. Holley, 604 A.2d 772, 776 (R.I.1992) (stating that remand for imposition of lesser included offense requires sufficient evidence to support conviction and instruction of jury on lesser included offense); Shields, 722 So.2d at 588 (Sullivan, J., dissenting).
{56} Lesser included offense instructions developed at common law as a tool of the State. They enabled the State to exercise its discretion to charge the greater offense yet preserve its ability to seek a conviction of the lesser included offense when, at trial, its proof of the greater offense proved nonexistent or weak. Instructing the jury on lesser included offenses developed at common law to aid the prosecution “in cases in which the proof failed to establish some element of the crime charged.” Beck, 447 U.S. at 633, 100 S.Ct. 2382.
{57} At trial, failing to request an instruction constitutes a waiver of the issue, and precludes review by the higher court. To preserve error concerning a failure to instruct on an issue, a correct written instruction must be tendered before the jury is instructed. State v. Foster, 1999-NMSC-007, ¶ 54, 126 N.M. 646, 974 P.2d 140. A charge of attempt could properly have been before the trial court but for the prosecution’s failure to request that an instruction on attempt be given. “Under Rule 5-608, counsel must submit a proper instruction to preserve error only if no instruction is given on the issue in question on appeal.” Santillanes v. State, 115 N.M. 215, 218, 849 P.2d 358, 361 (1993). This was held in Myers to preclude considering a lesser included offense on appeal when no instruction was tendered. See Myers, 461 N.W.2d at 781-82.
{58} The purpose of Rule 5-608 “is to allow the court an opportunity to decide a question whose dimensions are not open to conjecture or after-the-fact interpretation.” Gallegos v. State, 113 N.M. 339, 341, 825 P.2d 1249, 1251 (1992). New Mexico does not require the giving of a lesser included instruction without it being requested by a party. State v. Garcia, 46 N.M. 302, 306,128 P.2d 459, 461 (1942) (stating that the court rule requiring tender of instruction or objection to a tendered instruction required supersedes case law that formerly required giving lesser included instructions). When a party does not tender a written jury instruction, the issue of whether such an instruction should have been allowed is not preserved for our review. State v. Badoni, 2003-NMCA-009, ¶ 7, 133 N.M. 257, 62 P.3d 348. The State was clearly alerted that an instruction on attempt might be proper. There is no reason for us to pursue an option consciously abandoned by the State. The majority opinion seems to regard Defendant’s mention of “attempt” in his motion for a directed verdict as some sort of waiver by him that would allow us to consider the charge here. That is an incorrect view. At trial, Defendant could have accepted or objected to a lesser included offense instruction. If he did not object, the issue would be waived. The defense requested no consideration of a lesser included offense and now objects to our considering one on appeal.
{59} At one time, New Mexico required trial courts, in murder cases, to sua sponte give lesser included instructions if warranted by the evidence. State v. Diaz, 36 N.M. 284, 289, 13 P.2d 883, 887 (1932), overruled in part by Garcia, 46 N.M. at 306, 128 P.2d at 463. This is not indicative of anything consistent with “sporting” or “gaming.” Diaz was overruled in part because of the adoption of a rule requiring all parties to request instructions on all theories of their case or face a finding of waiver if they did not. Garcia, 46 N.M. at 306, 128 P.2d at 463. Our Supreme Court chose the will of the parties over the imposition of policy forcing instruction on lesser included offenses.
{60} New Mexico courts have recognized that even when instructions on lesser offenses may otherwise be constitutionally mandated if requested, “the defendant is free to make strategic choices regarding the manner in which he will or will not avail himself of procedural safeguards afforded by the law, and he generally will be bound by those choices.” State v. Boeglin, 105 N.M. 247, 251, 731 P.2d 943, 947 (1987). The State’s entitlement to a lesser included instruction, where warranted, has been held by our Supreme Court to be no less than that of the defense. Meadors, 121 N.M. at 47, 908 P.2d at 740 (deciding that a defendant’s right to a lesser included offense instruction is “at least as great” as the State’s right to a lesser included offense instruction). There is no reason to hold the State to a lesser standard of behavior when they decided not to seek to have the jury be instructed on such an offense, particularly when they are entitled to by law, and were clearly alerted that attempt would “perhaps” be all that was left in the absence of a valid permit. The State now “cannot be heard to complain on appeal if [they have] gambled and lost.” Boeglin, 105 N.M. at 251, 731 P.2d at 947. The majority opinion is no more than the “after-the-fact interpretation” the rules seek to avoid. Gallegos, 113 N.M. at 341, 825 P.2d at 1251.
{61} If the State wants to have a lesser charge considered, it is the State’s burden to seek consideration of such charges by the trial court if they want them or to bear the cost of not doing so. “If substantial justice has been done, parties must have duly taken and preserved exceptions in the lower court to the invasion of their legal right before we will notice them here.” Garcia, 46 N.M. at 308, 128 P.2d at 462 (internal quotation marks and citation omitted). “[A] party to a criminal prosecution will not be heard to complain about the failure to charge a lesser included offense that is not alleged in the bill of indictment unless a timely written request to make such a charge is submitted to the trial court.” Prater v. State, 273 Ga. 477, 545 S.E.2d 864, 868 (2001) (holding that where the prosecution requested, then abjured a lesser included instruction at trial, the State’s failure to pursue an adequate instruction on attempt “waived all claims on appeal relative to the instructions’s omission from the trial court’s overall charge”). To so hold
places no onerous burden on the State. It means only that, at the close of the evidence at trial, the State, no less than the accused, must take care to evaluate the sufficiency of the evidence to support the charge. If the evidence will support a lesser included offense instruction, then either the State or the accused may, and probably should, request one.
Collier, 999 S.W.2d at 782; see People v. Najera, 8 Cal.3d 504, 105 Cal.Rptr. 345, 503 P.2d 1353, 1358-59 (1972) (en banc); People v. Spencer, 22 Cal.App.3d 786, 99 Cal.Rptr. 681, 690-91 (1972).
{62} Choosing to seek an instruction on a lesser included offense has serious implications, including due process considerations. A defendant risks being convicted of a greater crime than he committed if the jury convicts on the greater offense, and the State risks the jury’s (proper) acquittal if they follow their instruction and find that a requisite element is not proven. In this case, the defense argued that the permit was not legally extant, and the trial court gave the matter to the jury to decide as an issue of fact. The defense properly sought to rely on the jury after it was instructed that the State’s burden is to prove each element beyond a reasonable doubt.
{63} Here, the defense chose its path, asserting that the permit was not valid as a matter of law, and argued that theory to the trial court. Ultimately, this proved to be a proposition with which we agree. In so doing, however, the defense alerted the State to the possibility of a lesser included offense that the State — equally consciously — chose not to pursue. This is not a case like Tapia, cited by the majority, where the defendant waited until jeopardy attached before moving to suppress evidence. In fact, this case is more like what Tapia said would invoke double jeopardy protection for the defendant; the case where the State’s desire in this case smacks of “honing its trial strategies and perfecting its evidence through successive attempts at conviction,” as here on appeal the State seeks the result they now ask us to provide. Tapia, 109 N.M. at 744, 790 P.2d at 1025 (concluding that evidence is not insufficient when trial stopped because the defendant wrongly acted so as to secure exclusion of evidence; retrial permitted). Likewise, Maes is inapposite, standing for the proposition that the orderly administration of justice compels courts to evaluate stipulated dismissals of appeal for just result. Maes, 100 N.M. at 80-81, 665 P.2d at 1171-72 (concluding that the State’s stipulation is not warranted; declining to dismiss appeal).
{64} The majority ignores the distinction between an appellate court finding evidence in the record sufficient to support a jury verdict, and the jury finding the evidence sufficient to prove guilt beyond a reasonable doubt. Shields, 722 So.2d at 588 (Sullivan, J., dissenting). Here, the jury had nothing to compare between the substantive crime and an attempt to commit it. The evidence on which the jury decided the case is judged by us to be insufficient to sustain the verdict. We are not in a position to say that there is no remaining defense to attempt.
{65} Both the prosecution and defense in this ease are capable attorneys who know the burdens and benefits of their actions. Myers points out that for us to remand for entry of conviction on the lesser included offense would encourage the State to go for broke as it did here, and then, if a verdict was overturned for insufficient evidence, seek a conviction in our Court. See Myers, 461 N.W.2d at 782-83.
{66} State v. Garcia, 114 N.M. 269, 276, 837 P.2d 862, 869 (1992) (opinion on rehearing), found that where the evidence supported inferences favoring both the greater and lesser offenses, it did not necessarily support either one beyond a reasonable doubt. The upshot was remanding for trial on two lesser included offenses because justice demanded full consideration of the charges. Id. The implication seems to be that a retrial may be “in the interests of justice” when the jury has not had an opportunity to consider all proper matters in a case. Id. Even Allison, on which the majority relies (via Rutledge), allows for retrials if they are in the interest of justice. Allison, 409 F.2d at 452; see also State v. Darkis, 2000-NMCA-085, ¶¶ 12, 21, 129 N.M. 547, 10 P.3d 871 (remanding case for trial on lesser included offense when the defendant’s instruction was refused by the trial court).
Defendant Has a Due Process Right to Notice of the Offense with Which He Is Charged; the State Purposefully Chose Not to Charge Defendant with Attempt
{67} By imposing a conviction on an uncharged crime of attempt and remanding for sentencing, we find Defendant guilty of a crime with which he was not charged. The defense mentioned the crime of attempt in their motion for a directed verdict on the permit-related counts, stating that: “[The State] [has] to prove there was a permit in effect, and there wasn’t. There wasn’t. If they had charged [Defendant] with attempt, perhaps they could stay in the case at this point, but they didn’t.” (Emphasis added.) The State thereafter requested no amendment of the indictment to include the charge as conforming to the evidence received at trial. See Rule 5-204(0) NMRA 2003 (“The court may at any time allow the indictment or information to be amended in respect to any variance to conform to the evidence.”). During oral argument before this Court, and later in the supplemental briefing we requested, the State pleaded that if we reverse the convictions, we should remand for resentencing on attempt. The State should have pursued the attempt option below when they had the opportunity.
{68} We consider it to be a “basic proposition that the function of a charge in a criminal case is to provide the defendant with notice of the charges against which the defendant must defend.” In re Marlon C., 2003-NMCA-005, ¶ 9, 133 N.M. 142, 61 P.3d 851. “[A] defendant in a criminal case is entitled to know with what he is charged and to be tried solely upon the charges against him.” State v. Crump, 82 N.M. 487, 491, 484 P.2d 329, 333 (1971). That determination requires consideration of the specific elements of each offense in light of the evidence in the particular case. State v. Johnson, 103 N.M. 364, 371, 707 P.2d 1174, 1181 (Ct.App.1985); State v. Brecheisen, 101 N.M. 38, 41, 677 P.2d 1074, 1077 (Ct.App.1984).
{69} “The trial court can properly consider a lesser-included offense if the evidence at trial would support a conviction for that offense.” Hernandez, 1999-NMCA-105, ¶ 25, 127 N.M. 769, 987 P.2d 1156 (emphasis added). In Haynie, the case was remanded on appeal for sentencing on a lesser included offense, but the defendant had conceded at trial that he was guilty of that offense. Haynie, 116 N.M. at 747-48, 867 P.2d at 417-18. Here, the lesser included offense suggested by the majority is a different crime itself, and Defendant admits no guilt.
{70} For a defendant to be found guilty of attempt, the defendant must commit an overt act in furtherance of the commission of the greater offense. See § 30-28-1. That overt act is not part of the charging document here. The majority relies on Gosselin, 309 N.E.2d at 888, for the general proposition that a completed crime necessarily includes all the elements of an attempt, but this is not all of that case. Gosselin held that where the element of an overt act in furtherance of the greater crime was not included in the charging document, the defendant was not on notice for the element of attempt to commit the crime and could not be convicted of the lesser offense. Id.
{71} Defendant was not on notice in this case that if a permit did not exist he would be considered to have attempted to violate it. Nor was he on notice that discharging contaminants on the dates the State accused him of violating a permit were alternatively violations committed by acting illegally if there was no permit. Where a different unrelated crime is supported by evidence produced at trial, the trial court still cannot enter a conviction if the defendant is not on notice that he is charged with it. State v. McGee, 2002-NMCA-090, ¶¶ 7-19, 132 N.M. 537, 51 P.3d 1191. Neither should we. To find Defendant acting where no permit exists is to establish a different crime. We found the evidence to be insufficient, and reversed the conviction. The evidence should therefore be viewed as inherently suspect, suggesting that we should hesitate to act, perhaps particularly where we are most certain that the proof supports the elements of another crime. Without notice that there is a new crime to defend, Defendant’s due process rights should preclude our finding a new crime of which to convict him.
Legal — as Opposed to Factual — Impossibility Precludes Conviction for Attempt as a Lesser Included Offense in this Case; the Attempt Here is a Completed, Though Different, Crime
{72} Without a permit in place, Defendant was not legally capable of committing the crimes of which he was convicted; his acts would constitute a different crime entirely. In State v. Rael, we held that whether a person was part of a criminal enterprise was a matter of statutory interpretation, which is a question of law, and “not subject to the substantial evidence standard of review.” 1999-NMCA-068, ¶ 5, 127 N.M. 347, 981 P.2d 280. We review questions of law de novo. Id. Here, we determined, after analyzing the permitting requirements of the WQA to see if any inference could support the validity of an expired permit, that there was no legal permit in effect for Defendant to violate. “Interpretation of a statute is an issue of law, not a question of fact.” State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995).
{73} The State maintained throughout trial and now before this Court that permit DP-854 was, even if expired, a “de facto” permit and that, “[n]o evidence indicated that DP-854 was considered to be invalid or defunct such that continued operations at the disposal site ... were ... discharges without a permit.” The State obviously recognized the legal necessity of some form of permit to support a conviction under Section 74-6-10.2(A)(1) and (4) if the violation were to involve a permit violation. Although they argued that less than a currently valid permit was required to exist when the crime was committed, we rejected this position, holding that, “[w]e can determine no legal basis for considering that DP-854 was a valid permit at the time Defendant committed the acts for which he was convicted.” Majority opinion, ¶ 10. Without the permit, the legal impossibility of committing the crime renders attempt an unehargeable crime.
{74} After reversing the convictions here, the majority went on, and, citing Lopez, 100 N.M. at 292, 669 P.2d at 1087, found that this case is “analogous to cases involving factual impossibilities” and then proceeded to construct a crime of attempted violation of a permit. Majority opinion, ¶ 12. In doing so, I believe the majority missed that what we properly determined was the legal impossibility of Defendant’s committing the crime. Lopez made a distinction (that it later abandoned) between legal and factual impossibility in a ease involving the defendant’s sale of a substance he believed and represented to the buyer as cocaine, but was not. Id. I believe this case shows the problem with Lopez’s holding that legal and factual impossibility are the same, as Justices Sosa and Federici pointed out in their dissents. Id. at 293, 669 P.2d at 1088 (Sosa and Federici, J.J., dissenting). This is particularly so since the legal preclusion of the existence of one element results in a legally separate violation of the statute with regard to a violation of Section 74-6-10.2(A)(l), with which Defendant was charged in other counts in the indictment in this case. With regard to Section 74-6-10.2(A)(4), failing to monitor, sample or report as required by a permit is simply legally impossible to commit absent “a permit issued pursuant to a state or federal law or regulation.”
{75} In Lopez, the determination was a factual one; Lopez, who did not know what he sold was other than cocaine, intended to traffic in cocaine, and offered for sale a substance as the illegal drug itself to a police informant. Lopez, 100 N.M. at 292, 669 P.2d at 1087. Our Supreme Court, in its majority opinion, held that this constituted an attempt, because factual impossibility precluded his actually selling cocaine. Id. The distinction of whether it was actually an illegal drug was eclipsed by the defendant’s intent to sell what he believed and represented to buyers to be an illegal substance. Id.
{76} Where the crime is impossible because the completed act itself could not legally be criminal, an impossibility exists that stands outside the context of fact and the defendant’s intent or belief. Here, it even constitutes a different crime. Violation of Section 74.6.10.2(A)(1) consists of committing the same acts — the only difference is whether done in violation of a permit or without one when a permit is required. Discharging a contaminant in the absence of a permit is a different violation, as the statute and Defendant’s indictment in this case clearly show. This is then the case that the Court in Lopez did not address, namely where the crime’s commission is impossible, not just its completion.
{77} Unlike in Lopez, the crimes charged here depend on the legal existence of a permit, not a factual question of chemical composition. The trial court wrongly allowed the jury to decide the legal issue of the existence of a permit as an issue of fact. We concluded that it did not exist as a matter of law. “[I]f the intended act is not criminal, there can be no criminal liability for an attempt to commit the crime.” State v. Lopez, 81 N.M. 107, 108, 464 P.2d 23, 24 (Ct.App.1969), overruled in part by State v. Ruffins, 109 N.M. 668, 671, 789 P.2d 616, 619 (1990). With no permit in play, Defendant falls under the other crimes of which he was accused in other counts: illegal dumping and failing to monitor without a permit. Attempting to violate a permit makes no sense in this context.
Remanding for Sentencing from the Appellate Court Violates Defendant’s Rights to Due Process
{78} The majority’s reliance on Rutledge to imply that the U.S. Supreme Court approves this policy is not compelling because the issue of appellate remand for imposition of conviction for the lesser included offense was handled only in dicta, with the Court finding that “[t]here is no need for us now to consider the precise limits on the appellate courts’ power to substitute a conviction on a lesser offense for an erroneous conviction of a greater offense.” Rutledge, 517 U.S. at 306, 116 S.Ct. 1241. As the majority notes, this practice of entering convictions for lesser included offenses is not universally accepted among the Federal Circuits. See, e.g., United States v. Duran, 141 F.3d 1186 (10th Cir.1998) (unpublished opinion) (recognizing that the practice is allowed in Tenth Circuit survey of other circuits’ law); Vasquez-Chan, 978 F.2d at 554. As noted above, Shields, primarily relied upon by the majority, was a split decision. Shields, 722 So.2d at 588. The four dissenting justices in Shields joined Texas, Wisconsin, and Alabama in eschewing the practice of employing the Allison rule to enter judgments of conviction for lesser included offenses on appeal. See Ex parte Roberts, 662 So.2d 229, 232 (Ala.1995). The Wisconsin Supreme Court’s unanimous opinion in Myers, 461 N.W.2d at 777 thus advances what I believe is a more persuasive analysis of this problem. Myers had been convicted of aggravated battery. The Wisconsin Court of Appeals reversed the conviction because the evidence was insufficient on the element of great bodily harm, but declined to remand the case for entry of judgment of conviction on a lesser included offense, and the State appealed. Id. at 778. The Supreme Court affirmed the refusal to enter a conviction in a case where the verdict had been reversed for insufficient evidence. Id. First, the court concluded that a verdict reversed for insufficient evidence was “too suspect a determination of guilt for an appellate court to use as the basis for ordering conviction of a lesser included offense for which no instruction had been submitted to the jury.” Id. at 780. Second, the Court concluded that “directing the entry of a judgment of conviction ... after reversal of the conviction for insufficient evidence does not comport with the underlying principles governing [jury instructions concerning] lesser included offenses and the role of the [trial] court vis-a-vis the parties and counsel in instructing juries.” Id. Finally, it concluded (as did the Court of Appeals) that by requesting the modification of judgment, the State was changing its trial strategy and objecting on appeal to jury instructions to which it entered no objection at trial. Id.
CONCLUSION
{79} The majority’s chosen path is not so easily resolved by concentrating on evidence that is “necessarily found,” nor charges that are “necessarily included.” In many ways, the charges do not match up so congruently. The State caused its problem at trial by consciously, purposefully failing to preserve their right to have a lesser included offense considered. The State in fact had no inclination toward an attempt charge until they realized they faced reversal of the only convictions they had in the case when the “de facto” permit showed itself to be less than secure. We know an attempt was not considered as a charge below. From our perch, we cannot presume that the defense would not have a different strategy defending an attempt or other charge than the original charge. We cannot presume the way a jury would view all the evidence once it is submitted. We therefore should decline to allow the State to reverse its trial strategy by asking us to do on appeal what they did not seek to accomplish below. We consistently deny such relief to criminal defendants who did not seek lesser included instructions; there is no reason to accord the State more leeway. In light of the foregoing reasons, I conclude that a different path would have been more appropriate for this case.