¶1dissenting
¶2I must respectfully dissent as to Issue IIn Henderson v. State, 690 N.E.2d 706 (Ind.1998), our supreme court clearly resolved the issue of whether a twelve person jury is required when a defendant is charged with a class C felony or higher when it held:
If a defendant is charged with a class C felony or higher, the jury consists of twelve jurors unless the defendant and prosecuting attorney agree to a lesser number.
¶3Id. at 706. In addition, Ind.Code 35-37-1-1(b) provides that if a defendant is charged with “murder, a Class A felony, a Class B felony or a Class C felony, the jury shall consist of twelve (12) qualified jurors unless the defendant and prosecuting attorney agree to a lesser number.”
¶4Penal statutes are to be strictly construed to avoid enlarging them by intendment or implication beyond the fair meaning of the language used. State v. Shelton, 692 N.E.2d 947, 949 (Ind.Ct.App.1998). Here, the record is devoid of any evidence that the prosecuting attorney and the defendant agreed to a lesser number. In addition, I fail to detect any evidence in the record that would lead me to believe that either party raised or discussed the issue.
¶5Our supreme court was unequivocal in Henderson:
We ... hold that when the State’s charging instrument charges the defendant with a class C felony or higher, regardless of whether the charge has been elevated by *215virtue of a prior conviction, a twelve person jury is required.
¶7The majority holds that Croney waived the right to a jury of twelve members; however, according to both our supreme court and the statute, the crucial issue is whether the prosecutor and the defendant agreed to a lesser number. I further note that the facts of the cases cited by the majority in reaching its waiver result include agreements between the defendant and the prosecutor regarding the number of jurors.
¶8For example, in Holliness v. State, 467 N.E.2d 4 (Ind.1984), the trial court asked both defense counsel .and the prosecutor if they would accept twelve jurors and forego the selection of an alternate juror. The court explained that if no alternate juror was selected, he would conclude the case with an eleven-member jury in the event one juror became ill. Both attorneys agreed and twelve jurors were selected. At that time, both counsel accepted the twelve member jury. Later, after the jury had begun deliberations, one of the jurors became ill and was taken to the hospital. The court informed both counsel about the juror and ordered the jury to resume deliberations with eleven members.
¶9At that point, HoUiness told his counsel that he did not want eleven people deciding his case and that he was entitled to a twelve-member jury. His counsel reminded him that the decision to proceed without an alternate was made before the trial had started. On appeal, our supreme court stated that “under the circumstances of this case, we think the trial court was justified in relying on counsel’s express agreement to select only a twelve-member jury and conclude with an eleven-member jury in the event that it became necessary.” Id. at 7.
¶10Further, in Judy v. State, 470 N.E.2d 380 (Ind.Ct.App.1984), Judy’s attorney and the prosecutor agreed to trial by a six member jury. On appeal, Judy argued that his express consent to the six member jury was required. We disagreed and found that although “under the statute in question the defendant’s consent was necessary to try the case to a six member jury, the consent did not involve a fundamental right. Instead, it was merely a matter of trial procedure and as such was properly consented to by Judy’s attorney.” Id. at 382.
¶11I would reverse the defendant’s conviction and remand for a new trial with a twelve person jury, unless the prosecuting attorney and defendant agree to a lesser number.