The opinion
Judge, RILEY,
concurring in result.
I concur in result. I do not disagree with the reasoning of Sharkey v. State, 672 N.E.2d 937 (Ind.Ct.App.1996) as the majority opinion sets out in footnote 3, but would distinguish its holding. I agree with the Conclusions of Law made by the post-conviction court who also distinguished Sharkey.
The verdiet in this case was entered on January 20, 1994. At that time, the court concluded that reckless homicide was a factually included offense of murder and followed the holding in Sills v. State, 463 N.E.2d 228 (Ind.1984), where the court held that the State could preclude instructions on lesser included offenses by drafting the charge so that it tracked the statute. That case was not expressly overruled until 1995 in Wright v. State, 643 N.E.2d 417 (Ind.Ct.App.1994) even though Roland v. State, 501 N.E.2d 1034 (Ind.1986), and Outlaw v. State, 484 N.E.2d 10 (Ind.1985), both contradicted Sills. Therefore, pursuant to the two-prong analysis in Roland v. State, only if a serious evidentiary dispute existed between the lesser and greater offenses, would it be fundamental error to refuse to instruct on an inherently or factually included lesser offense.
In Sharkey, the issue was whether he intended to kill his victim. Therefore, the jury had to determine whether the lesser included offense of reckless homicide had been committed but not the greater offense of intentional murder. In this case, the specific issue before the post-conviction court is whether the lesser included offense of reckless homicide was committed, but not the greater offense of a knowing killing. The post-conviction court makes eight findings that show the jury could not have come to such a conclusion:
1. Fisher had served in the military and therein been trained in the use of firearms.
2. Fisher brought the handgun to the restaurant that night.
3. Fisher knew the handgun was loaded.
4, He placed the handgun in a position of easy access.
*328 5. He drew the handgun and pointed it at the victim stating that he was not throwing beer but slinging lead.
6. The handgun was a semi-automatic. If functioning normally, the trigger must have been pulled to fire it; if on the other hand the pin was faulty, as Fisher contends, he knew that and based on his military training would appreciate the dangers of a malfunctional [sic] deadly weapon.
8.{sic} Fisher poked the victim in the back with the handgun.
9.[sic] Fisher fired the weapon at point blank range into the victim's back.
Appellant's App. pp. 182-37.
Therefore, I concur with the Findings of Fact and Conclusions of Law of the post-conviction court and find that it was not fundamental error for the court to refuse to instruct the jury on reckless homicide because there was not a serious evidentia-ry dispute.