Full Opinion

Pursuant to Ind. Appellate Rule 65(E), the trial court and parties shall not take any action in reliance upon this Opinion until it is certified. FILED Nov 12 2026, 8:51 am CLERK Indiana Supreme Court Court of Appeals and Tax Court IN THE Court of Appeals of Indiana Charles Ethan Miles, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff November 12, 2026 Court of Appeals Case No. 26A-CR-455 Appeal from the Vanderburgh Superior Court The Honorable Emily S. Kemper, Magistrate Trial Court Cause No. 82D03-2406-MR-4137 Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 1 of 19 Opinion by Chief Judge Tavitas Judge Felix concurs. Judge Bradford concurs in part and concurs in result in part with separate opinion. Tavitas, Chief Judge. Case Summary [1] Charles Ethan Miles appeals his conviction of murder, a felony. Miles argues that the trial court committed fundamental error in instructing the jury on voluntary manslaughter. We disagree and, accordingly, affirm. Issue [2] Miles raises one issue, which we restate as whether the trial court committed fundamental error in instructing the jury on voluntary manslaughter. Facts [3] On the evening of June 22, 2024, Cade Kirk drove his Jeep Renegade to a gas station in Evansville and parked at a fuel pump. Kirk’s girlfriend was seated in the front passenger seat; Miles and his wife were back-seat passengers. [4] Corey Fisher, who lived two blocks from the gas station, walked to the gas station and entered the station’s convenience store. Fisher was the former boyfriend of Miles’ wife, and Miles believed that, some months earlier, Fisher had sent sexually explicit pictures to her. Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 2 of 19 [5] After Fisher entered the store, Miles exited the Jeep and began pointing at Fisher. When Fisher exited the store, Miles approached Fisher and tried to punch him. Miles missed and fell to the pavement. Fisher ran toward his house. Miles briefly followed and then returned to the Jeep. [6] Kirk—with his passengers—drove away from the station, passed Fisher along the way, parked in a dark area near Fisher’s house, and turned off the vehicle’s lights. After the Jeep passed him, Fisher picked up a piece of asphalt and carried it with him as he approached the intersection near his home. As Fisher stood in the roadway, Miles and Kirk emerged from the darkness and ran toward him. Fisher swung the piece of asphalt and struck Miles above his left eye. The two men then fell to the ground and tussled. Kirk approached, and Miles and Kirk began to beat Fisher about the head with their fists and kicked Fisher as he lay on the ground. Miles struck Fisher twenty-six times, and Kirk struck him sixteen times. The beating lasted around thirty seconds. The men stopped the attack when a vehicle approached the intersection and stopped at the stop sign. [7] Fisher got up, and Miles and Kirk walked back toward the Jeep. As Kirk walked away, he picked up and kept Fisher’s cellular telephone that had fallen into the street. Fisher paused briefly to catch his breath, then walked to a neighbor’s front porch, slowly collapsed, fell unconscious, and went into cardiac arrest. The neighbor called 9-1-1, and emergency responders transported Fisher to a local hospital. Fisher never regained consciousness. Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 3 of 19 [8] During a police interview, Miles acknowledged that he knew Fisher and that he believed Fisher had sent the explicit photographs to his wife. He admitted that he wanted to fight Fisher and had been in sixty-two fights in his lifetime. Miles remembered being hit in the head and stabbed during the fight that had involved Kirk and Fisher. He claimed, however, that he had blacked out and did not remember the fight itself. A law enforcement officer informed Miles that the interactions between Miles, Kirk, and Fisher, the assault, and Fisher’s collapse, were all captured on various video surveillance systems. [9] The State initially charged Miles with attempted murder. Fisher, however, died two days after the attack. The medical examiner determined that the cause of death was blunt force trauma to the head, which caused Fisher’s brain to swell. After Fisher’s death, the State amended the attempted murder charge and, 1 instead, charged Miles with murder. [10] Miles’ two-day jury trial was held in January 2026. Miles had filed a notice of self-defense, which he withdrew during trial. At Miles’ request, the trial court provided final instructions to the jury on involuntary manslaughter, reckless homicide, and voluntary manslaughter. [11] Two jury instructions in particular addressed voluntary manslaughter. Final Instruction No. 5 provided that voluntary manslaughter “is a lesser included 1 Kirk was also charged with murder, was tried by jury in March 2025, and was found guilty as charged. Kirk appealed, arguing insufficient evidence to prove that he knowingly killed Fisher. Kirk v. State, No. 25A- CR-737 (Ind. Ct. App. October 16, 2025) (mem.). This Court affirmed Kirk’s murder conviction. Id. Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 4 of 19 offense” of murder and instructed the jury that if the State failed to prove Miles guilty of murder, then the jury could consider whether Miles committed voluntary manslaughter. Appellant’s App. Vol. II p. 95. Final Instruction No. 6 defined voluntary manslaughter, identified sudden heat as a mitigating factor, and set forth the elements and the burden of proof for that offense. The jury was separately instructed on the meaning of “sudden heat.” Tr. Vol. III p. 103. Miles requested that the trial court include Final Instruction No. 6 in the final jury instructions; the record does not reflect why the trial court included Final Instruction No. 5. The record also does not reflect that a final-instruction conference was held. The chronological case summary, however, noted that the “Final Jury Instructions [were] approved by parties.” Appellant’s App. Vol. II p. 12. [12] During closing arguments, the State argued that the dispositive question was whether Miles knowingly killed Fisher and that the jury did not need to consider the lesser-included offenses “unless [the jury] believe[d Miles was] not guilty of murder.” Tr. Vol. III p. 119. Miles argued that he had acted recklessly and asked the jury to return a verdict for reckless homicide or involuntary manslaughter. Despite requesting a final instruction on voluntary manslaughter, Miles did not ask the jury to return a verdict for voluntary manslaughter. On rebuttal, the State addressed voluntary manslaughter as a lesser offense, arguing that the evidence did not establish the mitigating factor of sudden heat because any provocation that might have occurred regarding the Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 5 of 19 sexually explicit pictures would have occurred months before the attack on Fisher. [13] The jury found Miles guilty of murder. The trial court entered judgment of conviction and sentenced Miles to sixty years executed in the Department of Correction. Miles now appeals. Discussion and Decision [14] Miles argues that the trial court erred in instructing the jury on voluntary manslaughter; and thus, according to Miles, his murder conviction must be reversed. We disagree and conclude that, taking the jury instructions as a whole, any error in instructing the jury on voluntary manslaughter did not amount to fundamental error. [15] Voluntary manslaughter is the knowing or intentional killing of another human being “while acting under sudden heat[.]” Ind. Code § 35-42-1-3(a). Sudden heat is not an element of the offense, rather, it is “a mitigating factor that reduces what otherwise would be murder . . . to voluntary manslaughter.” I.C. § 35-42-1-3(b); Carmack v. State, 200 N.E.3d 452, 459 (Ind. 2023). Sudden heat exists when a defendant is “provoked by anger, rage, resentment, or terror, to a degree sufficient to obscure the reason of an ordinary person, prevent deliberation and premeditation, and render the defendant incapable of cool reflection.” Carmack, 200 N.E.3d at 459-60 (quoting Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018)). “Once sudden heat has been injected into the heart of the Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 6 of 19 case, the burden is on the State to negate its existence.” Carmack, 200 N.E.3d at 459 (internal quotations and citation omitted). [16] Here, the trial court provided the jury with two final instructions on voluntary manslaughter. Miles argues that one of those instructions was erroneous and that the other, though correct, did not cure the defective instruction. “The purpose of a jury instruction ‘is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.’” Ramirez v. State, 174 N.E.3d 181, 199 (Ind. 2021) (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)). We review a trial court’s jury instructions for an abuse of discretion. Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015). “An abuse of discretion arises when the instruction is erroneous and the instructions taken as a whole misstate the law or otherwise mislead the jury.” Id. at 484-85. “Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law in the case.” Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (quoting Whitney v. State, 750 N.E.2d 342, 344 (Ind. 2001)). [17] Miles, however, did not object at trial to the trial court’s final jury instructions. “A party’s failure to object to, and thus preserve, an alleged trial error results in waiver of that claim on appeal.” Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019) (citing Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018)). Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 7 of 19 [18] To avoid waiver, Miles argues that the trial court’s voluntary manslaughter instructions amounted to fundamental error. We may review an instruction for fundamental error as a narrow exception to waiver. Dunn v. State, 230 N.E.3d 910, 914 (Ind. 2024) (citing Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022)). “The fundamental error exception to waiver is ‘extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.’” Shields v. State, 248 N.E.3d 1246, 1264 (Ind. Ct. App. 2024) (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)), trans. denied. A defendant asserting fundamental error “can prevail only if the jury charge as a whole ‘was so misleading as to make a fair trial impossible or blatantly violate[s] basic due process[.]’” Dunn, 230 N.E.3d at 915 (quoting Knapp v. State, 9 N.E.3d 1274, 1285 (Ind. 2014)). [19] Miles challenges as erroneous Final Instruction No. 5, which reads as follows: The Defendant is charged with Murder, a felony. The offense of Voluntary Manslaughter, a Level 2 Felony, is a lesser included offense to the offense charged. If the State proves the Defendant guilty of Murder, a Felony, beyond a reasonable doubt, you need not consider the included crime. However, if the State fails to prove the Defendant committed Murder, a Felony, beyond a reasonable doubt, you may consider whether the Defendant committed Voluntary Manslaughter, a Level 2 Felony, which the Court will define for you. You must not find the Defendant guilty of more than one crime. Appellant’s App. Vol. II p. 95. Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 8 of 19 [20] Miles argues that Final Instruction No. 5 is “fundamentally erroneous” because it instructed the jury that it “need not consider” voluntary manslaughter if the State proved murder when, in fact, the jury should consider voluntary manslaughter only if it first finds that the State proved murder—as sudden heat is a mitigating factor that reduces what would otherwise be murder to voluntary manslaughter. Appellant’s Br. pp. 10-11. The concern Miles raises is the chance that the jury found that he had knowingly killed Fisher and then declined to consider any evidence of sudden heat. Miles further argues that the instruction was erroneous because it instructed the jury to consider voluntary manslaughter only after finding that the State had failed to prove murder. [21] We acknowledge and agree with Miles’ position that Final Instruction No. 5 is erroneous. Final Instruction No. 5 incorrectly stated that if the State failed to prove all the elements of murder, the jury could then decide whether Miles committed voluntary manslaughter. Such instructions have previously been held to be improper. See McWhorter v. State, 970 N.E.2d 770, 778 (Ind. Ct. App. 2012) (finding instruction improperly directed the jury to consider offense of voluntary manslaughter only if State failed to prove all elements of murder), trans. granted, summarily aff'd in relevant part, 993 N.E.2d 1141, 1147-48 (Ind. 2013). Nevertheless, we conclude that, looking at the final jury instructions as a whole, Final Instruction No. 5 was not so misleading as to make a fair trial impossible and, thus, did not amount to fundamental error. [22] As we noted previously, “error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law in the case.” Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 9 of 19 Pattison, 54 N.E.3d at 365 (quoting Whitney, 750 N.E.2d at 344). Here, the trial court also instructed the jury in Final Instruction No. 6, which reads as follows: The crime of murder is defined by law as follows: A person who knowingly or intentionally kills another human being, commits murder, a felony. Included in the charge in this case is the crime of Voluntary Manslaughter, which is defined by law as follows: A person who knowingly or intentionally kills another human being, while acting under sudden heat commits Voluntary Manslaughter, a Level 2 felony. Sudden heat is a mitigating factor that reduces what otherwise would be murder to voluntary manslaughter. The State has the burden of proving beyond a reasonable doubt that the Defendant was not acting under sudden heat. Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt: 1. The Defendant; 2. Knowingly; 3. Killed; 4. Corey Fisher; 5. And the Defendant was not acting under sudden heat. If the State failed to prove each of the elements 1 through 4 beyond a reasonable doubt, you must find the Defendant not guilty of murder as charged in Count 1. Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 10 of 19 If the State did prove each of the elements 1 through 4 beyond a reasonable doubt, but the State failed to prove beyond a reasonable doubt element 5, you may find the Defendant guilty of voluntary manslaughter, a Level 2 felony, a lesser included offense of Count 1. If the State did prove each of the elements 1 through 5 beyond a reasonable doubt, you may find the Defendant guilty of murder, a felony, as charged in Count 1. 2 Appellant’s App. Vol. II p. 96. [23] Miles concedes that Final Instruction No. 6 correctly states the law. He argues, however, that this instruction “directly conflicts with Final Instruction No. 5” and, thus, “does not cure Final Instruction No. 5.” Appellant’s Br. p. 15. To 2 We pause to note that voluntary manslaughter is a lesser crime than murder, not a typical lesser-included offense; it actually requires an additional showing—sudden heat—beyond what murder requires. See Ind. Code § 35-42-1-3. A typical “lesser-included offense” is an “included offense” that (1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged; (2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or (3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission. Ind. Code § 35-31.5-2-168 (2012) (a recodification of Ind. Code § 35-41-1-16 (repealed by P.L. 114-2012, §§ 103-132) that provided a materially identical definition of “included offense” as provided in the 2012 statute). Here, Final Instruction No. 6 refers to voluntary manslaughter as a “lesser included offense” of murder, Appellant’s App. Vol. II p. 96, consistent with Indiana case law’s historic characterization of the offense. In Watts v. State, our Supreme Court explained that, although voluntary manslaughter is a lesser-included offense of murder, it is not a typical lesser-included offense. 885 N.E.2d 1228, 1232 (Ind. 2008). More recently, however, our Supreme Court has described the two offenses as “degrees of homicide” separated by the mitigating factor of sudden heat, which “reduces what otherwise would be murder to voluntary manslaughter,” without using “lesser included” terminology. Carmack, 200 N.E.3d at 459 (internal quotations and citations omitted). We leave for another day whether voluntary manslaughter remains a “lesser-included” offense of murder, as the question is not at issue in Miles’ case. The “lesser included” label was not the source of the defect in Final Instruction No. 5, and Final Instruction No. 6 otherwise correctly instructed the jury on voluntary manslaughter. Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 11 of 19 support his argument, Miles cites Roberson v. State, 982 N.E.2d 452 (Ind. Ct. App. 2013). [24] In Roberson, which stemmed from a post-conviction proceeding, the issue on appeal was whether Roberson’s trial counsel provided ineffective assistance in failing to object to jury instructions. The trial court in Roberson expressly instructed the jury that, “[i]f the State proves [Roberson] guilty of Murder, you must not consider the included crimes.” Id. at 458 (citation omitted) (emphasis in original). Another instruction told the jury, “If you find that [Roberson] is not guilty of the crime of Murder . . . , you may then consider whether [Roberson] is guilty of the included offense of Voluntary Manslaughter[.]” Id. at 460 (citation omitted). Those instructions were erroneous because they informed the jury to consider voluntary manslaughter only after finding the State failed to prove murder, and the murder definitions did not require that the State disprove sudden heat. See id. This Court concluded in Roberson that “the jury instructions as a whole indicated to the jury that it could only consider convicting Roberson of voluntary manslaughter if it first found him not guilty of murder.” Id. (emphasis added). We held that trial counsel’s failure to object to those instructions constituted ineffective assistance of counsel. Id. at 461. [25] Roberson is distinguishable from the case before us in three distinct ways. First, the Roberson jury was twice incorrectly instructed that sudden heat was an element of voluntary manslaughter which the State bore the burden of proving, id. at 459. Miles’ jury, however, was correctly instructed in Final Instruction Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 12 of 19 No. 6 that sudden heat is a mitigating factor that reduces murder to voluntary manslaughter and that the State bore the burden of disproving it. [26] Second, in Roberson, “neither party explained the proper burden of proof to the jury during their closing arguments[,]” Roberson, 982 N.E.2d at 461, whereas, here, the State stated during closing arguments that Miles “obviously [wa]s looking for a lesser included verdict” and that if the jury “were to determine that [Miles] did kill [Fisher] knowingly but it was in sudden heat, then that would be a lesser included voluntary manslaughter.” Tr. Vol. III pp. 126-27. Additionally, Miles did not ask the jury during closing arguments to return a verdict for voluntary manslaughter, asking, instead, for a verdict of either involuntary manslaughter or reckless homicide. [27] Third, in Roberson, the trial court instructed the jury that it “must not” consider voluntary manslaughter once it found that Roberson committed murder— language that expressly forbade the jury from reaching a voluntary manslaughter verdict. Roberson, 982 N.E.2d at 458. And the Roberson jury had been incorrectly instructed on sudden heat. Id. Here, however, although Final Instruction No. 5 used incorrect language, Final Instruction No. 6 correctly instructed the jury regarding voluntary manslaughter. [28] In other words, in Roberson, the instructions in question told the jury to consider voluntary manslaughter only after finding that the State had failed to prove murder. And the instruction defining murder did not provide that the State was required to disprove sudden heat. Here, although the jury was provided with Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 13 of 19 the incorrect Final Instruction No. 5, the jury was also provided with Final Instruction No. 6, which properly instructed the jury on the law regarding voluntary manslaughter, including the State’s burden to disprove sudden heat. [29] Thus, viewing the jury instructions as a whole, we conclude that Final Instruction No. 6 was sufficient to cure any confusion and that the jury was not misled regarding the law on voluntary manslaughter. See, e.g., McDowell v. State, 102 N.E.3d 924, 937 (Ind. Ct. App. 2018) (finding no error where instructions as a whole properly informed jury of law regarding voluntary manslaughter), trans. denied; Howell v. State, 97 N.E.3d 253, 263 (Ind. Ct. App. 2018) (holding that incorrect voluntary manslaughter instruction did not mislead jury and result in fundamental error where separate instruction correctly defined the offense, identified sudden heat as a mitigating factor, and placed upon the State the burden of disproving sudden heat), trans. denied. Therefore, Final 3 Instruction No. 5 did not result in fundamental error. Conclusion [30] The inclusion of erroneous Final Instruction No. 5 in the jury’s instructions, considering the final instructions as a whole, did not rise to the level of fundamental error. Thus, the trial court did not commit fundamental error in 3 Because we conclude that the jury instructions in Miles’ case, as a whole, did not mislead the jury, we need not address the parties’ dispute over whether the evidence of sudden heat was sufficient to warrant a voluntary manslaughter instruction at all. We note, however, that our Supreme Court has provided that “‘[a]ny appreciable evidence of sudden heat’ will indeed justify an instruction on voluntary manslaughter.” Carmack, 200 N.E.3d at 462 (quoting Roark v. State, 573 N.E.2d 881, 882 (Ind. 1991)). Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 14 of 19 instructing the jury on the offense of voluntary manslaughter. Accordingly, we affirm. [31] Affirmed. Felix, J., concurs. Bradford, J., concurs in part and concurs in result in part with separate opinion. ATTORNEY FOR APPELLANT Matthew J. McGovern The McGovern Law Office Fishers, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 15 of 19 Bradford, Judge, concurring in part and concurring in result in part. I. The Trial Court’s Instructions on Voluntary Manslaughter Were Harmless [32] While I agree with the majority that the trial court’s instructions on voluntary manslaughter did not amount to fundamental error, I write separately because I agree with the State’s assertion that their being given could only have been harmless error because they should not have been given at all. An error is harmless when it results in no prejudice to the “substantial rights” of a party. Camm v. State, 908 N.E.2d 215, 225 (Ind. 2009); Ind. Trial Rule 61. While there are important contextual variations to this rule, the basic premise holds that a conviction may stand when the error had no bearing on the outcome of the case. At its core, the harmless-error rule is a practical one, embodying “the principle that courts should exercise judgment in preference to the automatic reversal for error and ignore errors that do not affect the essential fairness of the trial.” United States v. Harbin, 250 F.3d 532, 546 (7th Cir. 2001) (internal quotation marks omitted). Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (footnotes omitted). “Sudden heat is characterized as anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary person, preventing deliberation and premeditation, excluding malice, and rendering a person incapable of cool reflection.” Hall v. State, 166 N.E.3d 406, 415 (Ind. Ct. App. 2021). [33] I do not think that there is sufficient evidence in the record to support a finding that Miles acted in sudden heat. Fisher had allegedly, several months prior to Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 16 of 19 his death, sent Miles’s wife photographs of his genitalia, and the record contains no evidence of subsequent communication between them. In my view, this isolated, months-old communication is insufficient to support a finding that Miles’s reason was so obscured that he was incapable of cool reflection when he attacked and killed Fisher. [34] As it happens, the reason the instructions should not have been given (lack of supporting evidence) is also the reason that giving them was harmless. Miles’s stated concern in this case is that the allegedly-erroneous instruction on voluntary manslaughter may have caused the jury to disregard any evidence of sudden heat, which is no concern at all because there was none to disregard. The only “harm” suffered by Miles was to be given an undeserved chance of receiving a windfall. Under the circumstances, any error the trial court may have made in instructing the jury on voluntary manslaughter could only be considered harmless. [35] While it is true that the Indiana Supreme Court has stated that “it is indeed reversible error for a trial court to instruct a jury on voluntary manslaughter in the absence of evidence of sudden heat[,]” Watts v. State, 885 N.E.2d 1228, 1233 (Ind. 2008), I would note that the Watts court did not say that such an unsupported instruction is invariably reversible error, and Watts itself recognized that there are exceptions to the rule. See id. (“Though we held that the error was harmless in Wilkins [v. State, 716 N.E.2d 955 (Ind. 1999)], this case is different.”). Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 17 of 19 [36] In my view, this case is also one of those exceptions, as it does not fit into the holding of Watts; this case simply does not present the potential for prejudice identified in Watts, which is the possible elimination of an all-or-nothing defense as an option, in which a defendant attempts to force to limit the jury’s choices to murder or acquittal. In this case, because Miles requested that the jury be instructed on involuntary manslaughter and reckless homicide as other lesser types of homicide, he was clearly not denied an all-or-nothing defense from it being given. II. The Incorrect Characterization of Voluntary Manslaughter as a Lesser-Included Offense of Murder Led to the Erroneous Instruction No. 5 [37] I also wish to briefly expand on the majority’s footnote 3, which correctly notes that the Indiana offense of voluntary manslaughter is not truly a “lesser- included” offense of murder 4 but, in my view, does not fully explain why I believe it matters. I differ from the majority in that it seems to me that applying lesser-included principles to voluntary manslaughter and murder directly resulted in the erroneous Instruction No. 5, 5 which, again, reads, in part, as 4 I propose the term “lesser non-included offense.” 5 If this instruction involved two offenses, one which was actually a lesser-included offense of the other, it would make perfect sense: “The Defendant is charged with Battery Causing Serious Bodily Injury, a Level 5 felony. The offense of Battery, a Class B Misdemeanor, is a lesser included offense to the offense charged. If the State proves the Defendant guilty of Battery Causing Serious Bodily Injury beyond a reasonable doubt, you need not consider the included crime. However, if the State fails to prove the Defendant committed Battery Causing Serious Bodily Injury beyond a reasonable doubt, you may consider whether the Defendant committed Battery, a Class B Misdemeanor, which the Court will define for you.” Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 18 of 19 follows and specifically refers to voluntary manslaughter as a lesser-included offense of murder: The Defendant is charged with Murder, a felony. The offense of Voluntary Manslaughter, a Level 2 Felony, is a lesser included offense to the offense charged. If the State proves the Defendant guilty of Murder, a Felony, beyond a reasonable doubt, you need not consider the included crime. However, if the State fails to prove the Defendant committed Murder, a Felony, beyond a reasonable doubt, you may consider whether the Defendant committed Voluntary Manslaughter, a Level 2 Felony, which the Court will define for you. Appellant’s App. Vol. II p. 95. [38] Contrary to this instruction, the voluntary manslaughter statute, as written, essentially requires a factfinder to find the defendant guilty of all of the elements of murder before it can consider whether “[t]he existence of sudden heat is a mitigating factor that reduces what otherwise would be murder […] to voluntary manslaughter.” Ind. Code § 35-42-1-3. While the majority has concluded that this instruction did not cause fundamental error and I have agreed (in addition to concluding that giving it was harmless error), it would have been better, of course, if such an instruction had not been given at all, and I write in the hope that a similar instruction never be given again. Court of Appeals of Indiana | Opinion 26A-CR-455 | November 12, 2026 Page 19 of 19