dissenting.
It is undisputed that the trial court erred in instructing the jury on accomplice liability, and it is also undisputed that the record is silent regarding whether the jury found Rosales guilty of attempted murder as an accomplice or as a principal. Relying on Thomas, the majority concludes that the error was not fundamental. I respectfully disagree.
The majority states that "when the jury found Rosales guilty of attempted murder, the State had met its burden of proof on each and every element of the offense of attempted murder, and it 'simply does not matter how' the jury was instructed on accomplice liability." Op. at 1019 (quoting Thomas, 827 N.E.2d at 1132-33). I believe that it very much does matter in this case. In Thomas, both the charging information and the jury instructions contained each of the elements of "Knowing or Intentional Murder." Here, however, Rosales was not charged under an accomplice liability theory, and the preliminary instructions did not mention accomplice liability. Only the final instructions mentioned accomplice liability, and those instructions were erroneous because they failed to inform the jury that an accomplice to attempted murder must act with the specific intent to kill. As Rosales states, "the instructions provided the jury two distinct bases for finding [him] guilty of attempted murder, one where he was required to have an intent to kill and one which required no intent to kill whatever, only the aiding inducing or causing of a crime." Appellant's Reply Br. at 5. Although the jurors could have convicted Rosales as a principal, it is equally likely that they could have convicted him as an accomplice based on an erroneous instruction. In my view, the erroneous instruction made a fair trial impossible and therefore constituted fundamental error. Consequently, I would reverse Rosales's attempted murder conviction and remand for a new trial.