Sanchez v. State

ATTORNEYS FOR APPELLANT

Susan K. Carpenter

Public Defender of Indiana

Gregory L. Lewis

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Barbara Gasper Hines

Deputy Attorney General

Indianapolis, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

GUADALUPE A. SANCHEZ, )

)

Appellant (Defendant Below), ) Indiana Supreme Court

) Cause No. 92S03-0009-CR-518

v. )

) Indiana Court of Appeals

STATE OF INDIANA, ) Cause No. 92A03-9908-CR-322

)

Appellee (Plaintiff Below). )

__________________________________________________________________

APPEAL FROM THE WHITLEY CIRCUIT COURT

The Honorable James R. Heuer, Judge

Cause No. 92C01-9807-CF-00124

__________________________________________________________________

ON PETITION FOR TRANSFER

__________________________________________________________________

June 26, 2001

BOEHM, Justice.

We hold that Indiana Code section 35-41-2-5, prohibiting the use of

evidence of voluntary intoxication to negate the mens rea requirement in

criminal cases, does not violate the Indiana Constitution.

Factual and Procedural Background

On the night of July 6, 1998, Guadalupe Sanchez attended a birthday

party in a trailer in Allen County, Indiana. All nine people at the party

were drinking and some were smoking marijuana. Sanchez was noticeably

intoxicated after consuming between two and twenty-four beers and several

glasses of tequila. He was asked to leave after he was accused of

“grabbing all the girls’ butts.”

Sanchez soon returned to the trailer with a gun. He held the four

remaining occupants of the trailer hostage while he attempted to find a

woman who had already left the party. After the four hostages convinced

Sanchez that they did not know where the woman was, he ordered one of the

hostages to remove all of the telephones in the trailer, took the phones,

and forced seventeen-year-old H.S. to leave with him.

Sanchez and H.S. walked for thirty minutes to a cornfield where

Sanchez forced H.S. to remove her clothes and then raped her. When she

complained that he was hurting her, Sanchez performed oral sex on her, and

then raped her several more times. The pair then walked three and one-half

miles to Sanchez’s house, hiding in ditches when cars passed. When they

reached the house, Sanchez took H.S. to the basement and again raped her.

Both Sanchez and H.S. then fell asleep.

Early that morning, the police arrived and found Sanchez asleep next

to H.S. with a loaded weapon near his right hand and his left hand around

H.S.’s neck. At trial, the trial court gave the following instruction over

Sanchez’s objection: “Voluntary intoxication is not a defense to the

charge of Rape and Confinement. You may not take voluntary intoxication

into consideration in determining whether the Defendant acted knowingly or

intentionally, as alleged in the information.” This instruction accurately

reflects Indiana law, effective July 1, 1997, as codified in Indiana Code

section 35-41-2-5. Pub. L. No. 210-1997, § 3, 1997 Ind. Acts 2938. A jury

convicted Sanchez of rape and criminal confinement and he was sentenced to

forty years imprisonment.

On appeal, Sanchez argues that it was error to give the voluntary

intoxication instruction because the Due Course of Law provision of the

Indiana Constitution and several other state constitutional provisions

establish his right to present a voluntary intoxication defense. The Court

of Appeals, after an extensive examination of the origin of Article I,

Section 12 and the history of intoxication as a defense, found that Sanchez

had provided no independent analysis supporting a due course of law claim

under the Indiana Constitution, and therefore evaluated this issue under

federal due process doctrine. Sanchez v. State, 732 N.E.2d 165, 173 (Ind.

Ct. App. 2000). The Court of Appeals found Montana v. Egelhoff, 518 U.S.

37 (1996), dispositive. The court concluded that there was no federal due

process violation because, in the terms of the plurality opinion in

Egelhoff, prohibiting evidence of intoxication did not offend “a principle

of justice so rooted in the traditions and conscience of our people so as

to be ranked fundamental.” Sanchez, 732 N.E.2d at 173.

I. Voluntary Intoxication as a Defense Under Indiana Law

The Court of Appeals opinion contains a more detailed account of the

history of voluntary intoxication as a defense to the mens rea element of

crimes. In summary, at the time of the debates surrounding the 1851

Constitution, drunkenness and intoxicating liquors were viewed quite

harshly. Proposals to the Constitution were made to prohibit licenses to

sell liquor and to prevent the State from benefiting from liquor sales. At

common law, intoxication was itself an offense, and the prevailing view was

that one crime was no defense to another.[1] By 1860, this Court,

consistent with other states, had come to the view that evidence of

intoxication might be allowed in certain homicide crimes. O’Herrin v.

State, 14 Ind. 420, 420 (1860). Thirty years later, this Court held that

evidence of intoxication was admissible to reduce a first-degree murder

conviction to second-degree. Aszman v. State, 123 Ind. 347, 353-59, 24

N.E. 123, 125-27 (1890). By 1901, the Court had extended the use of

intoxication evidence to all crimes requiring proof of specific intent.

Booher v. State, 156 Ind. 435, 448-49, 60 N.E. 156, 160 (1901). This

became the majority position in the United States. See Montana v.

Egelhoff, 518 U.S. 37, 46-47 (1996).

In 1980, the legislature added Indiana Code section 35-41-3-5(b),

which attempted to limit the use of voluntary intoxication as a defense to

crimes that required “with intent to” or “with intention to.” Four years

later, in Terry v. State, 465 N.E.2d 1085, 1088 (Ind. 1984), this Court

held that, “[a]ny factor which serves as a denial of the existence of mens

rea must be considered by a trier of fact before a guilty finding is

entered,” and concluded that the statute was unconstitutional.

In 1996, the United States Supreme Court held that a state could

prohibit a criminal defendant from offering evidence of voluntary

intoxication to negate the requisite mens rea without violating the Due

Process Clause of the Fourteenth Amendment. Egelhoff, 518 U.S. at 56.

Therefore, as we observed in Van Cleave v. State, 674 N.E.2d 1293, 1302

n.15 (Ind. 1996), the Terry doctrine is “no longer good law” insofar as it

is grounded in the federal constitutional guarantee of due process.

In 1997, in response to Egelhoff, the legislature enacted Indiana

Code section 35-41-2-5. This section provides: “Intoxication is not a

defense in a prosecution for an offense and may not be taken into

consideration in determining the existence of a mental state that is an

element of the offense . . . [with exceptions not relevant here].” If this

statute is consistent with the state constitution, the instruction in

Sanchez’s trial properly captured the law of Indiana governing a claim of

lack of intent by reason of voluntary intoxication. As explained below,

compatibility of the statute with the federal constitution was established

in Egelhoff, but the state constitutional issues have not been resolved by

this Court.

II. Article I, Section 12—Due Course of Law and “Substantive Due Process”

Sanchez first argues that Indiana’s Due Course of Law provision, when

read in conjunction with the other constitutional provisions, “protected

Sanchez’s ability to challenge the State’s proof of his intent by putting

on a defense of voluntary intoxication.” According to Sanchez, Indiana

Code section 35-41-2[2]-5 is unconstitutional because it violates Article

I, Section 12, in addition to several other constitutional provisions.

Although he does not analyze Section 12 independently of other

constitutional provisions, Sanchez phrases his argument in terms of due

course of law. His contention seems to be that the criminal protections in

the other sections of the Indiana Constitution create either a “protectable

interest” under the Due Course of Law provision or establish that the

voluntary intoxication defense is “firmly ingrained” and, therefore, cannot

be abolished by the legislature because of the Due Course of Law provision.

The State tersely responds that, “Clearly the [voluntary intoxication]

instruction does not violate the Indiana Constitution,” relying on the

proposition that due course of law claims are to be examined using the same

analysis as federal due process claims. We agree with the State’s

conclusion, but not with its reasoning.

No case from this Court other than Terry v. State, 465 N.E.2d 1085,

1088 (Ind. 1984), has considered the need for a voluntary intoxication

defense under either the federal or state constitution. Terry did not

state in so many words that a statutory abolition of the defense of

voluntary intoxication is prohibited by the Indiana Constitution. We

nevertheless have the proposition from Terry that the issue presented in

that case was whether elimination of voluntary intoxication as a defense

“is violative of the Constitution of the United States and the State of

Indiana.” Terry, 465 N.E.2d at 1087. The constitutional basis for Terry’s

conclusion that the voluntary intoxication statute is “void and without

effect” is not clear. Id. at 1088. Terry adopted the concurring opinion

in Sills v. State, 463 N.E.2d 228, 240 (Ind. 1984) (Givan, C.J.), overruled

on other grounds by Wright v. State, 658 N.E.2d 563, 569-70 (Ind. 1995),

which took the view that every crime necessarily has a mens rea

requirement. Sills did not make clear whether a specific constitutional

provision was thought to impose such a requirement, or, if so, what

provision of the federal or state constitution it was. In sum, although

Terry, via Sills, suggests that the Indiana Constitution forbids a

limitation on the voluntary intoxication defense, neither opinion indicates

what provision of the state constitution supports that conclusion. The

same is true of the concurrence in this case.

Sanchez points to the “due course of law” phrase as the source of his

Indiana constitutional claim. Questions arising under the Indiana

Constitution are to be resolved “by examining the language of the text in

the context of the history surrounding its drafting and ratification, the

purpose and structure of our constitution, and case law interpreting the

specific provisions.” Indiana Gaming Comm’n v. Moseley, 643 N.E.2d 296,

298 (Ind. 1994). And, the first line of inquiry in any constitutional case

is the text of the constitution itself. Ajabu v. State, 693 N.E.2d 921,

929 (Ind. 1998). Article I, Section 12 provides: “All courts shall be

open; and every person, for injury done to him in his person, property, or

reputation, shall have remedy by due course of law. Justice shall be

administered freely, and without purchase; completely, and without denial;

speedily, and without delay.” By the terms of Section 12, only the second

sentence of that section is relevant in the criminal context, and that

sentence gives no guidance on the need vel non for a defense based on lack

of mens rea for any reason, let alone for voluntary intoxication.

Other interpretative tools in addition to language analysis are also

of limited use here. There is no unique Indiana history surrounding the

adoption of this clause in 1816 or its redrafting in 1851, McIntosh v.

Melroe Co., 729 N.E.2d 972, 974 (Ind. 2000), but the interpretation

suggested by this language is supported by the history of the due course of

law doctrine and by the case law surrounding Article I, Section 12. Due

course of law provisions appear to stem from Sir Edward Coke’s commentary

on the Magna Carta.[3] Their basic thrust is that “courts will adhere to

the law, rather than whim or corruption, in dispensing justice to

litigants.” Jennifer Friesen, State Constitutional Law § 6-2(a) (2d ed.

1996). These provisions have been interpreted to be a response to the

abuses that were present in England at that time, including bribes to delay

or expedite the judicial system. Id. Twenty-one states share similar

provisions encompassing the idea that the “very essence of civil liberty

certainly consists in the right of every individual to claim the protection

of laws, whenever he receives an injury.” Id. at § 6.2(b) & App. 6

(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)).

So viewed, the Due Course of Law provision is applicable to civil

proceedings, but provides none of the criminal protections of its federal

counterpart. As we recently noted in Melroe, 729 N.E.2d at 976 & n.2, all

of the previous cases that have found any criminal protection in the first

sentence of Article I, Section 12 have done so based on “due process”

without any analysis of the independent meaning of the Due Course of Law

provision. Because the federal constitution required the results in those

cases, appending a state “due process” doctrine without explanation was

unnecessary, and, we think, incorrect as well. Rather, “[b]y its terms,

[the first sentence of Article I, Section 12] applies only in the civil

context.” Id. at 976.

The second sentence of Article I, Section 12 refers to “justice”

being administered “completely.” Article I, Section 1 embodies the

provision in the Declaration of Independence that guarantees a right to

“life, liberty, and the pursuit of happiness.” Neither of these, and no

other provision of the Indiana Constitution, can be claimed to be the

express limitation on governmental action found in the Fifth and Fourteenth

Amendments. Nevertheless, we are satisfied that Terry was correct in its

implicit assumption that fundamental fairness in judicial proceedings is

assumed and required by our state constitution. The common law has long

been a basic building block of Indiana law. See Ind. Code § 1-1-2-1 (1998)

(adopting language from 1 Ind. Rev. Stat. ch. 61, § 1 (1852)). As the

Court of Appeals noted, this Court has frequently referred to a “federal

and state” constitutional requirement of “due process.” Sanchez, 732

N.E.2d at 171-72. Although technically inaccurate, we think these

references reflect the common understanding that courts of this state are

constitutionally bound by the basic concepts of fairness that are

frequently identified with “due process” in the federal constitution.

We agree that, in general terms, this concept of fairness embraces the

opportunity to present evidence relevant to a defense, whether or not that

evidence is also supported by the terms of the Article I, Section 13 right

to compel attendance of witnesses. We thus have no quarrel with the

concurrence’s claim that the constitution of our state requires that a

defendant have the opportunity to present evidence on a mens rea element or

any other element or recognized defense. But we think the legislature has

redefined the mens rea element in Indiana to render irrelevant the evidence

that Sanchez and the concurrence would present.[4] For that reason,

although the state constitutional right in Article I, Section 12 and

federal due process are not necessarily identical, in this instance, we

reach the same conclusion under our state constitution as the United States

Supreme Court reached in Egelhoff under the Fourteenth Amendment.

III. Terry and Sills and the Debate over Strict Liability

We do not agree with Terry v. State, 465 N.E.2d 1085, 1088 (Ind.

1984), to the extent it suggested that the Indiana Constitution contains an

inherent bar to the elimination of voluntary intoxication as a means of

negating the mens rea element of a crime. And although we agree with the

concurrence that constitutional precedent should not be lightly

disregarded, we do not consider Terry and Sills v. State, 463 N.E.2d 228,

240 (Ind. 1984), overruled on other grounds by Wright v. State, 658 N.E.2d

563, 569-70 (Ind. 1995), to contain more than casual references to the

state constitution.

As already noted, there are limits on what the legislature may

criminalize, even in the absence of a specific constitutional bar. Because

there is no general due process clause in our state constitution, and no

specific provision addressing the issue, if there is a mens rea requirement

that the state constitution imposes on this or any other crime, it must

derive from this fairness concept. But courts must be careful to avoid

substituting their judgment for those of the more politically responsive

branches. Federal due process limitations on substantive provisions of

criminal law are largely a dead letter today, having yielded to procedural

(Brady[5]) and structural (Miranda[6], Batson[7]) reforms in the last half

century. Finding substantive criminal law constraints in our state

constitution is even harder where there is no specific provision such as

the Ex Post Facto clause. Federal substantive due process jurisprudence as

a means of judicial override of legislative policy is often criticized as

anchorless. In the Indiana Constitution, we have not even a due process

clause to hold our jurisprudential vessel steady against the shifting tides

of judicial inclinations. We also have the constitutional directive in

Article I, Section 1 that “all power is inherent in the people.” This too

suggests deference to legislation that does not run afoul of a specific

constitutional provision.

For all of the foregoing reasons, we think constitutional rights not

grounded in a specific constitutional provision should not be readily

discovered. Specifically, we do not agree with the Sills concurrence,

cited with approval in Terry, to the extent it takes the view that intent

is a constitutionally required element of every crime. To support that

view, the concurrence in Sills explains the case law supporting strict

criminal liability as in reality finding an “implied intent.” 463 N.E.2d

at 241. Smith v. California, 361 U.S. 147 (1959), is cited for the

proposition that every crime requires intent, even though that case

expressly stated that, “it is doubtless competent for the States to create

strict criminal liabilities by defining criminal offenses without any

element of scienter.” Id. at 150. To explain this apparent rejection of

the necessity of a mens rea element, the Sills concurrence contended that

some laws, e.g., food and drug regulatory statutes, require strict

liability to serve their purposes, and, therefore, it is “necessary” to

imply intent under some circumstances. 463 N.E.2d at 241. We assume the

reference is to cases such as United States v. Park, 421 U.S. 658, 672-73

(1975), and United States v. Dotterweich, 320 U.S. 277, 281 (1943),

upholding strict criminal liability under some circumstances. We think it

is more candid to acknowledge, as Smith holds, that some crimes do not have

a mens rea component, rather than to contend that intent is always

required, but may be implied if necessary. 361 U.S at 150.

We do agree that a crime requires some voluntary action, and perhaps

that is all Terry and Sills address. Sills cites an example that was

contended to illustrate the need for an intent requirement for every crime.

Although acknowledging that running a red light is an offense as to which

lack of intent is no defense, Sills cites it as a case where implied intent

is necessary. 463 N.E.2d at 241. To prove its point, Sills posed the

example of a motorist who is struck by a rock and rendered unconscious

while the car proceeds through the light. Id. The contention is that no

judge or jury should convict under those conditions. The conclusion is

generally correct, but we think this example does not establish that intent

is an element, but rather reflects the usual assumption that voluntary

action is a component of a crime. See Ind. Code § 35-41-2-1 (1998); cf.

McClain v. State, 678 N.E.2d 104, 107 (Ind. 1997).

To the extent some have suggested that statutes similar to this

eliminate the commonly understood requirement of voluntary actions

necessary for culpability,[8] we disagree. The statute provides that

voluntary intoxication “may not be taken into consideration in determining

the existence of a mental state that is an element of the offense.” Like

all statutes in derogation of the common law, it is to be strictly

construed. Durham v. U-Haul Int’l, 745 N.E.2d 755, 759 (Ind. 2001). We

think “an element of the offense” refers to each unique mental element set

forth in the statute defining the crime, and not to the general requirement

of voluntary action that underlies all crimes, but is typically not

articulated in the statutes except as it is found in the overriding

provision of Indiana Code section 35-41-2-1.[9] The Indiana intoxication

statute eliminates the requirement that the voluntarily intoxicated

defendant acted “knowingly” or “intentionally” as to those crimes that

include those elements.[10] But even if there may be an act rendered

involuntary by intoxication, itself a doubtful premise in most

circumstances, the legislature has decreed that the intoxication, if

voluntary, supplies the general requirement of a voluntary act. That is

sufficient to place the voluntarily intoxicated offender at risk for the

consequences of his actions, even if it is claimed that the capacity has

been obliterated to achieve the otherwise requisite mental state for a

specific crime.

The concurrence contends that the need for voluntary acts cannot be

supplied by voluntary intoxication. As we see it, the issues are: first,

what conduct the legislature has chosen to prohibit; and second, whether

there is any constitutional bar to criminalizing that conduct. It may be

unwise to impose strict liability for actions taken by voluntarily

intoxicated persons. But the issue before us is whether the legislature

has so provided, and, if so, whether it is unconstitutional. If the

statute so provides, and the constitution presents no barrier to that

legislation, evidence of voluntary intoxication may not be presented to

negate mens rea.

Providing that a voluntarily intoxicated person is responsible for his

or her actions to the same degree as a sober person does not criminalize

activity that is wholly innocent because of ignorance of an obscure law or

lack of knowledge of relevant facts. Rather, it substitutes an element of

voluntary intoxication to the point that a person can claim ignorance of

his own actions for the mens rea otherwise required as to the wrongful

conduct itself. In this respect, it is similar to felony murder, which

accepts the mens rea of the underlying felony as sufficient for murder.

Both involve attaching more serious penal consequences to an activity that

the legislature may view as reprehensible in itself if it produces greater

harm than it typically does. As such, neither presents the problem of

criminalizing activity that most would regard as wholly blameless,[11] or

even the issue of individual criminal responsibility for organizational

failures without proof of individual mens rea.[12]

Sanchez individually and alone inflicted this night of terror on his

victim. His conduct was plainly at the core of the circle of culpability.

The issue is whether the legislature may hold him criminally responsible

notwithstanding a claim of intoxication. We think the legislature had

conventional crimes—murder, battery, rape, and so forth—in mind when it

provided that voluntary intoxication does not negate the mens rea element.

So applied, that treatment of intoxication does not criminalize activity

that ordinary citizens would consider benign. Rather, it supplements the

“knowing” and “intentional” elements with a third condition. The statute

acts qualitatively the same as felony murder, and both are constitutional

forms of strict liability. If and when we are confronted with a claim that

intoxication was accompanied by an act wholly innocent if taken by a sober

person, we can consider the issues those facts raise.

Until 1997 a voluntarily intoxicated defendant in Indiana could claim

that his actions were neither “knowing” or “intentional.” Yet the pages of

the Northeast Reporter are full of cases reciting that the defendant’s

action in “executing a plan,” operating a motor vehicle, or otherwise

demonstrating physical capacity were enough to establish the requisite mens

rea as a matter of law. Assuming intoxication has both rendered a person

incapable of apprehending the consequences or wrongfulness of his acts and

still left him capable of performing them, we think the legislature may

constitutionally provide that the perpetrator whose ignorance is the

product of self-induced intoxication rather than moral blindness is equally

culpable. In this case, there can be no doubt from the extended sequence

of events that Sanchez acted voluntarily, however impaired he may have

been. The legislature has chosen to treat ignorance of the consequences of

one’s act induced by voluntary intoxication the same as simple ignorance of

the law. Even strong opponents of strict liability doctrine agree that it

may be appropriate for some crimes. Professor Hart’s work is usually cited

as one of the fountainheads of attacks on strict liability. See Henry M.

Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401

(1958). But he recognized that “any member of the community who does these

things without knowing they are criminal is blameworthy, as much for his

lack of knowledge as for his actual conduct.” Id. at 413.

IV. The Statute as a Redefinition of the Mens Rea Requirement

Because we conclude that a statute may properly impose criminal

liability for some actions without a mens rea element, the question becomes

whether the statute before us does that. We think Montana v. Egelhoff, 518

U.S. 37 (1996), is instructive on that point. Four Justices constituted

the plurality sustaining the Montana statute in Egelhoff on the ground that

a state may exclude relevant evidence if its exclusion does not offend

“some principle of justice so rooted in the traditions and conscience of

our people as to be ranked as fundamental.” Id. at 43 (quoting Patterson

v. New York, 432 U.S. 197, 201-02 (1977)). After examining the history of

voluntary intoxication in much more detail than is recounted here, the

Court then concluded that a voluntary intoxication defense is not a

fundamental right protected by federal due process.

Justices Ginsburg, Souter, and O’Connor, in individual concurrences or

dissents, agreed that a state could constitutionally define the mental

element of a crime to be satisfied by voluntary intoxication. Justice

Ginsburg thought that this was the proper view of the Montana statute and

concurred on that basis. Id. at 59-60. Justice Souter also thought the

statute seemed to do that, but felt constrained by the Montana Supreme

Court’s position that the statute prevented the introduction of relevant

evidence and therefore violated due process. Id. at 73-74. Justice

O’Connor agreed that a state could constitutionally define mens rea, but

read the statute to exclude relevant evidence, and, therefore, to deny

procedural due process. Id. at 71-73.

Unlike the Montana Supreme Court, we read the Indiana statute as

redefining the elements of crimes, and not as excluding relevant evidence.

As a matter of form, the statute does not speak in terms of admissible

evidence. It was added to the Indiana Code as a new section for Chapter 35-

41-2, which is entitled “Basis of Criminal Liability,” itself a part of

Article 35-41, entitled “Substantive Criminal Provisions.” This reading is

reinforced by our knowledge that the Indiana statute was adopted after

Egelhoff, and with the benefit of its analysis and the knowledge that the

result in Egelhoff turned on Justice Ginsburg’s reading of the Montana

statute. Justice Breyer, joined by Justice Stevens, pointed out that

reading the Montana statute as equivalent to a redefinition of the mental

elements of crimes has some potentially “anomalous results.” Id. at 79.

He asks why, if this were the intended result, would the legislation not

have done so explicitly. Id. at 80. We think Egelhoff itself suggests the

answer to that question for Indiana. The language of the Indiana statute

is essentially identical to the Montana version, which had already passed

federal constitutional muster in Egelhoff. That is a good enough reason

for the Indiana legislature to stick with the tried and true. Second, and

less important, the criminal laws of this state are filled with various

mens rea provisions. An attempt to redefine all in a single provision

would fit poorly with the codification effort to group statutes in

logically related categories, and amending these crimes piecemeal would be

a much more daunting drafting task. Because we view the voluntary

intoxication statute as defining the elements of crimes in this state, we

do not find it offensive to either the federal due process clause or any

notion of fundamental fairness embedded in our state constitution.

Because the statute does not “exclude relevant evidence,” it does not

necessarily proscribe evidence of the defendant’s use of alcohol or drugs.

Rather, as occurred in this case, this evidence may be admissible as

general background,[13] or as relevant to something other than lack of mens

rea, e.g., identity. Perhaps it may also be relevant to a claim of

accident under other circumstances. But none of these issues are raised

here. This is not to say, as the concurrence contends, that other rules of

evidence, specifically, Indiana Rule of Evidence 404(b), may not preclude

use of this evidence if the defense objects. To the contrary, Swanson v.

State, 666 N.E.2d 397, 398-99 (Ind. 1996), cited by the concurrence, holds

that Rule 404(b) may preclude evidence of other “bad acts.” We think this

holding is fully consistent with our ruling today. Here, evidence of

defendant’s intoxication was admitted and embraced by the defendant. If

such evidence is admitted, the instruction given by the trial court is

proper. Moreover, the trial court may properly exclude evidence of blood

alcohol content, as was done in this case, if it finds that it bears solely

on the degree of intoxication.

The concurrence purports to agree with Justice O’Connor’s concurrence

in Egelhoff. But as already noted, although Justice O’Connor readily

agreed with the plurality that a state could constitutionally redefine the

mens rea elements to elevate voluntary intoxication, she felt bound by the

Montana Supreme Court’s view of the Montana statute. Egelhoff, 518 U.S. at

71-73. Because we construe our statute as redefining the requisite mens

rea, we assume Justice O’Connor would agree that the Indiana statute is

constitutional under federal law.

In sum, we agree with the concurrence that the State is obligated to

prove all elements of a crime. And we agree that a defendant has a right

to present relevant evidence to negate an element of any charged offense.

But we disagree with the concurrence that the voluntary intoxication

statute denies this right. The statute redefines the requirement of mens

rea to include voluntary intoxication, in addition to the traditional

mental states, i.e., intentionally, knowingly, and recklessly. Thus,

evidence of voluntary intoxication does not negate the mens rea

requirement, as the concurrence contends. Rather, it satisfies this

element of the crime.

V. Article I, Section 13—Right to Present a Defense

Sanchez also contends that exclusion of evidence showing his

voluntary intoxication violates Article I, Section 13 of the Indiana

Constitution. That section provides: “In all criminal prosecutions, the

accused shall have the right . . . to be heard by himself and counsel . . .

.” He claims that his right to be heard provides him a right to present

his defenses. It is correct that the Indiana Constitution “places a unique

value upon the desire of an individual accused of a crime to speak out

personally in the courtroom and state what in his mind constitutes a

predicate for his innocence of the charges.” Campbell v. State, 622 N.E.2d

495, 498 (Ind. 1993), abrogated on other grounds by Richardson v. State,

717 N.E.2d 32, 49 n.36 (Ind. 1999). The United States Supreme Court has

similarly described the defendant’s federal constitutional right “to

present his own version of events in his words” as “fundamental.” Rock v.

Arkansas, 483 U.S. 44, 52 (1987).

But Article I, Section 13 does not require that any specific claim of

a defense be recognized by Indiana law. Rather, it gives defendants the

right to present evidence in support of those defenses that are recognized

by the law of the state. The language of the provision refers to the right

of a defendant to be heard by himself and counsel. It protects against

limitations on a defendant’s right to testify at trial and to be

represented by either himself or counsel. As this Court recently held in

Roach v. State, under the federal constitutional right to present a

defense, “the accused, as is required of the State, must comply with

established rules of procedure and evidence designed to assure both

fairness and reliability in the ascertainment of guilt and innocence.” 695

N.E.2d 934, 939 (Ind. 1998) (quoting Chambers v. Mississippi, 410 U.S. 284,

302 (1973)). One of the rules of evidence is the requirement of relevance.

Ind. Evidence Rule 401. If the substantive law renders the evidence

irrelevant—which is what the statute does to Sanchez’s claim of voluntary

intoxication—there is no right under Article I, Section 13 to present it.

We agree with the concurrence that a defendant has a right to present

evidence to negate any element of any crime. We disagree that the point is

relevant here because the statute, by definition with elements different

than the concurrence would like, renders the evidence irrelevant.

Accordingly, we hold that Indiana Code section 35-41-2-5 does not

violate Article I, Section 13 of the Indiana Constitution.

VI. Article I, Section 19—Jury to Determine Law and Facts

Article I, Section 19 reads, “In all criminal cases whatever, the

jury shall have the right to determine the law and the facts.” Sanchez

contends that Indiana Code section 35-41-2-5 violates his right to have the

jury determine the law and the facts pursuant to Article I, Section 19.

Specifically, he argues that the voluntary intoxication instruction binds

the jury to find intent where it may not have been proved, or to disregard

evidence that negates intent.

We do not find Sanchez’s claim persuasive. The voluntary intoxication

instruction does not unconstitutionally compel the jury to make a finding

of intent. In effect, it provides that the crime is committed if it is

done with the requisite mens rea or as a result of voluntary intoxication.

This statutory scheme does not violate either the federal constitution[14]

or the jury’s ability to determine “the law and the facts.”

VII. Article I, Section 23—Equal Privileges and Immunities

Sanchez finally contends that Indiana Code section 35-41-2-5 violates

Indiana’s Privileges and Immunities clause, Article I, Section 23. He

claims that the statute created a class of voluntarily intoxicated criminal

defendants who are not allowed to disprove their intent to commit the crime

and are held criminally responsible even if they did not act knowingly or

intentionally. This Court has enunciated a two-part test for determining

whether a statute granting unequal privileges or immunities to differing

classes of persons passes constitutional muster under Article I, Section

23: “First, the disparate treatment accorded by the legislation must be

reasonably related to inherent characteristics which distinguish the

unequally treated classes. Second, the preferential treatment must be

uniformly applicable and equally available to all persons similarly

situated.” Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994). In applying

this test, the judgment of the legislature is entitled to “substantial

deference.” Id.

The first inquiry under Article I, Section 23 is whether the statute

is reasonably related to the inherent characteristics that define the

classes. This statute classifies persons into three groups: (1) those not

intoxicated, (2) those voluntarily intoxicated, and (3) those involuntarily

intoxicated. As for the second of these, Indiana Code section 35-41-2-5

reflects the legislative determination that defendants who are voluntarily

intoxicated are responsible for their resulting actions, but recognizes

that individuals who become intoxicated through no fault of their own are

not to be held responsible for actions taken while intoxicated. This is a

permissible legislative judgment. This distinction between voluntarily and

involuntarily intoxicated defendants is rationally related to legislative

goals and is a permissible balancing of the competing interests involved.

The differentiation of the voluntarily intoxicated from those who lack mens

rea for reasons other than self-induced drunkenness is also rational. The

former voluntarily placed themselves in a mode to be harmful to others, and

the latter did not.

Section 23 also requires that the preferential treatment provided by

the legislation be uniformly applicable to all similarly situated persons.

On its face, the voluntary intoxication statute applies to everyone.

Sanchez is treated no differently from any other person who is voluntarily

intoxicated when he or she commits a crime. Indiana Code section 35-41-2-5

does not violate Article I, Section 23.

Conclusion

The judgment of the trial court is affirmed.

SHEPARD, C.J., and DICKSON, J., concur.

SULLIVAN, J., concurs in result with separate opinion in which RUCKER,

J., concurs.

Attorneys for Appellant

Susan Karen Carpenter

Public Defender of Indiana

Gregory L. Lewis

Deputy Public Defender

Indianapolis, IN

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Barbara Gasper Hines

Deputy Attorney General

Indianapolis, IN

IN THE

INDIANA SUPREME COURT

GUADALUPE A. SANCHEZ,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

)

) Supreme Court No.

) 92S03-0009-CR-518

)

) Court of Appeals No.

) 92A03-9908-CR-322

)

)

)

APPEAL FROM THE WHITLEY CIRCUIT COURT

The Honorable James R. Heuer, Judge

Cause No. 92C01-9807-CF-00124

ON PETITION TO TRANSFER

June 26, 2001

SULLIVAN, Justice, concurring in result.

This case is not about a defendant’s right to avoid culpability for

criminal acts on the grounds that he is drunk. Nor is this case about the

legislature’s ability to draft and redraft criminal statutes. What this

case is about is a defendant’s right to present evidence to a jury that an

element of a crime has not been satisfied.

I

Nearly seventeen years ago, this Court determined in Terry v. State

that a criminal defendant has a constitutional right to introduce evidence

of intoxication to negate an element of an offense charged by the State.

465 N.E.2d 1085, 1088 (Ind. 1984). Specifically, Terry held that “[a]ny

factor which serves as a denial of the existence of mens rea must be

considered by the trier of fact before a guilty finding is entered.

Historically, facts such as age, mental condition, mistake or intoxication

have been offered to negate the capacity to formulate intent.” Id. Terry

allowed a defendant to present relevant evidence to show that the State has

failed to carry its burden to establish beyond a reasonable doubt that the

mens rea requirement of a crime has been satisfied.[15] This is what

Justice DeBruler meant when he stated in a later case that “[w]henever the

State is required to prove a particular state of mind on the part of the

defendant, evidence of intoxication is permitted to negate the existence of

that element of the crime.” Fowler v. State, 526 N.E.2d 1181, 1182 (Ind.

1988). Cf. McClain v. State, 678 N.E.2d 104, 106 (Ind. 1997) (holding as a

matter of statutory law that “evidence of automatism can be presented to

show lack of criminal intent … .”), reh’g denied.

The majority opinion overrules Terry. I think this is wrong.

That Terry’s holding stems from the Indiana Constitution is beyond

question, despite the fact that the opinion does not cite a specific

provision. First, Terry stated that the statute at issue there was “void

and without effect” and “violative of the Constitution of the United States

and the State of Indiana.” 465 N.E.2d at 1087-88. See also id. at 1088 (“A

defendant in Indiana can offer a defense of intoxication to any

crime.”).[16] Moreover, Terry’s reliance on the Indiana Constitution is

further sharpened by its incorporation of Justice Givan’s concurring

opinion in Sills v. State, where he stated that a defendant could present

evidence of intoxication to negate an element of an offense “under our

constitution and under the firmly established principles of the mens rea

required in criminal law.” 463 N.E.2d 228, 242 (Ind. 1984) (emphasis

added), majority opinion overruled in part on other grounds in Wright v.

State, 658 N.E.2d 563, 570 (Ind.1995), reh’g denied. Terry’s

constitutional pedigree is bolstered by our treatment of it in the years

since 1984. Although the majority opinion asserts that “Terry did not

state in so many words that a statutory abolition of the defense of

voluntary intoxication is prohibited by the Indiana Constitution,” Majority

Opinion at 7, State v. Van Cleave recognized Terry’s roots in “the Indiana

and U.S. Constitutions.” 674 N.E.2d 1293, 1302 (Ind. 1996) (emphasis

added), reh’g granted on other grounds, 681 N.E.2d 181 (1997), cert.

denied, 522 U.S. 1119 (1998). Indeed, we have found the constitutional

principles expounded in Terry to be so fundamental that we gave its rule

retroactive application. See Pavey v. State, 498 N.E.2d 1195, 1196 (Ind.

1986) (applying Terry retroactively because its holding “corrected a flaw

which directly and persuasively affected the fact finding process and the

determination of a defendant’s guilt or innocence.”). We have as of yet

articulated no doubt about the constitutional source of the Terry rule.

See, e.g., Owens v. State, 659 N.E.2d 466, 472 (Ind. 1995), reh’g denied;

Fowler, 526 N.E.2d at 1182.

Exceedingly persuasive arguments must be set out for us to turn our

back on such established law. See New York, C. & St. L. R. Co. v.

Henderson, 237 Ind. 456, 465, 146 N.E.2d 531, 537 (1957) (“We are not

unmindful of the importance and the desirability of stable principles of

law upon which litigants may rely, but where a rule announced in an opinion

works an obvious injustice upon litigants and is not supported by any

authority that we can find, it should be eliminated from the body of

precedents of this jurisdiction.”), reh’g denied; Prudential Ins. Co. of

America v. Smith, 231 Ind. 403, 408, 108 N.E.2d 61, 63 (1952) (“This court

is reluctant to overrule its own precedents if there is any justification

in legal principles by which they can be sustained … .”). As Chief Justice

Emmert stated in State ex rel. Hale v. Marion County Municipal Court, Room

3:

Nor should this court casually overrule prior precedents if there is

to be stability in the law. … [This] is not a case where the reasons

for the rule have ceased to exist, or there never was any reason for

the rule in the first place, either of which may be good cause for

overruling a prior precedent. If this court is to overrule prior

precedents in order to force a result in a particular case, we will

administer justice by men and not by law, and have the law declared by

judges and not by courts.

234 Ind. 467, 484-85, 127 N.E.2d 897, 905 (1955) (Emmert, C.J.,

dissenting). Accord Durham v. U-Haul Int’l, 745 N.E.2d 755, 763 (Ind.

2001) (“We have no quarrel with the result reached by the Court of Appeals

as a matter of policy. If we were writing on a clean slate we would find

the Court of Appeals’ analysis persuasive.”).

Under these principles, we should review Terry only to see if

intervening circumstances have eroded its foundation to the extent that

there is no “justification in legal principles by which [it] can be

sustained.” Prudential, 231 Ind. at 408, 108 N.E.2d at 63. My review of

the justifications behind Terry indicates that its rule has several salient

features that are as strong today as in 1984.

The majority would hold that the voluntary intoxication defense

statute should be read as merely “defining the elements of crimes in this

state.” Majority Opinion at 19. This is because “a statute may properly

impose criminal liability for some actions without a mens rea” element. Id.

at 17. And because he reads Terry (and Sills) to suggest that a mens rea

element is constitutionally required, the majority says, it (they) are not

good law.

Even if a mens rea element is not constitutionally required as a

matter of substantive constitutional law, the rule that Terry set out –

which pertains solely to the presentation of evidence – has been vindicated

by the procedural aspects of this court’s and the United States Supreme

Court’s criminal law jurisprudence. See Louis D. Bilionis, Process, the

Constitution and Substantive Criminal Law, 96 Mich. L. Rev. 1269, 1272

(1998) (“[P]rocess considerations have been shaping the Supreme Court’s

jurisprudence at the intersection of the Constitution and substantive

criminal law for at least seventy-five years.”). Constitutional criminal

law is a process whereby each governmental actor plays an established role.

The legislative branch is responsible for defining crimes, while courts

must craft procedural rules that vindicate those legislative choices. Id.

at 1293, 1320-21.[17] I view Terry as one such “intersection of the

Constitution and substantive criminal law” that produced a procedural

right. Id. at 1272. Therefore, while the legislature is free to define

the elements of crimes, it was not free to override the rule of

constitutional criminal procedure that Terry pronounced.

Terry is not alone in this position. Several older Indiana cases

suggest that criminal defendants have a right to present evidence to rebut

the State’s case on a mens rea element. For example, we stated in Dedrick

v. State that “the Legislature has no power to declare that certain facts

shall be prima facie evidence of the ultimate fact of criminal intent,

where such facts, standing alone and without legislative enactment to aid

them, would not be sufficient to support a verdict.” 210 Ind. 259, 278, 2

N.E.2d 409, 418 (1936) (citing Powers v. State, 204 Ind. 472, 184 N.E. 549

(1933)). See also Jacobs v. State, 210 Ind. 107, 110, 1 N.E.2d 452, 453

(1936) (“Any instruction, whether or not it is based upon a legislative

enactment, which undertakes to tell the jury that certain evidence is

sufficient to establish the ultimate fact of criminal intent, or any other

ultimate fact, or to create a presumption of such an ultimate fact, invades

the constitutional province of the jury.”); Walter v. State, 208 Ind. 231,

237, 195 N.E. 268, 271 (1935) (holding that statute providing that “the

failure, suspension, or involuntary liquidation of the bank within thirty

days after the time of receiving the deposit, which is charged to have been

embezzled, shall be prima facie evidence of intent to defraud” violated

Article 1, § 19 of the Indiana Constitution). These cases stand for the

proposition that the legislature cannot set out the elements of a crime but

prevent a defendant from negating those elements through irrebuttable

presumptions of fact. This is similar to what occurred in Defendant’s

case, as the legislature defined rape to include an element of intent but

also set up a per se preclusion of the evidence that would negate that

element.

Indiana is not alone in adopting a position that a defendant has a

constitutional right to present evidence negating an element of mens rea.

Several courts from other jurisdictions have found a constitutional right

to present evidence to rebut the State’s proof of voluntary conduct:

To find otherwise would deprive a criminal defendant of the right to

defend against one of the essential elements of every criminal case.

In effect, then, such a finding would deprive the defendant of the

means to challenge an aspect of the prosecution’s case and remove the

burden of proof on that element in contravention of constitutional and

statutory law.

State v. Phipps, 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994) (discussing

constitutional right to present evidence of diminished capacity). See also

Brown v. State, 931 P.2d 69, 77 (N.M. 1996).

In fact, four members of the United States Supreme Court believe that

the right to present evidence negating the element of intent is ingrained

in the federal constitution. See Montana v. Egelhoff, 518 U.S. 37, 61

(1996) (O’Connor, J., dissenting). Justice O’Connor based much of her

dissent on what she deemed to be a “simple principle”: “Due process demands

that a criminal defendant be afforded a fair opportunity to defend against

the State’s accusations. Meaningful adversarial testing of the State’s

case requires that the defendant not be prevented from raising an effective

defense, which must include the right to present relevant, probative

evidence.” Id. at 63.[18] Four other justices in Egelhoff determined that

the ability to present such exculpatory evidence was not a “fundamental

principle of justice,” id. at 43 (opinion of Scalia, J.) and a fifth voted

on other grounds to uphold the conviction. Id. at 56 (opinion of Ginsburg,

J.). But the fact that Justice O’Connor’s opinion also had four votes

demonstrates that the thinking behind Terry has not faded so much that it

is “a case where the reasons for the rule have ceased to exist, or there

never was any reason for the rule in the first place.” Hale, 127 N.E.2d at

905.

Finally, I note that Terry does not work the kind of “obvious

injustice” against the State that would require its abandonment.

Henderson, 237 Ind. at 465, 146 N.E.2d at 537. Terry simply affords

defendants the chance to present relevant evidence.[19] It does not

guarantee an acquittal, and we have repeated Terry’s admonition that:

The potential of this defense should not be confused with the

reality of the situation. It is difficult to envision a finding of

not guilty by reason of intoxication when the acts committed require a

significant degree of physical or intellectual skills. As a general

proposition, a defendant should not be relieved of responsibility when

he was able to devise a plan, operate equipment, instruct the behavior

of others or carry out acts requiring physical skill.

465 N.E.2d at 1088 (emphasis added). I agree that there are an extremely

limited number of cases–as I will discuss in a moment, I do not think this

is one of them–where a defendant can meet the Terry standard. But it is a

criminal defendant’s constitutional right to try.[20]

Moreover, while Terry produces little unfairness to the State, the

majority opinion produces great unfairness to defendants. The legislature

has defined numerous crimes to include an element of intentional conduct.

See, e.g., Ind. Code § 35-42-4-1 (1998). Under the statute upheld today, a

criminal defendant is denied the opportunity to present evidence that is

relevant to these legislatively enacted elements. The statute precludes

this evidence without any reference to its reliability and instead makes it

unavailable simply to “increase the likelihood of conviction of a certain

class of defendants who might otherwise be able to prove that they did not

satisfy a requisite element of the offense.” 518 U.S. at 61 (O’Connor, J.,

dissenting).[21] And, of course, the majority’s opinion gives the

legislature carte blanch to eliminate a defendant’s right to present

evidence in other circumstances on the theory that it is merely “defining

elements.” This is perhaps the most disturbing aspect of today’s holding.

I agree with Justice O’Connor’s statement that: “A state legislature

certainly has the authority to identify the elements of the offenses it

wishes to punish, but once its laws are written, a defendant has the right

to insist that the State prove beyond a reasonable doubt every element of

an offense … .” Id. at 64. This unfairness in overruling Terry is

exacerbated by the fact that the majority opinion allows the introduction

of evidence of intoxication as “general background.” Majority Opinion at

20. Under this approach, the State would be allowed to attack the

defendant with what amounts to evidence of bad character – i.e. that the

defendant drinks to excess. However, the defendant would not be allowed to

use the exact same evidence to rebut the charges against him. Cf. Swanson,

666 N.E.2d at 397 (disapproving the use of prior bad act evidence to show

the “res gestae” of the crime).

My discussion here does not purport to show that I would feel

compelled to adopt the rule enunciated in Terry if that case were before us

in the first instance. There are valid reasons underlying both the

majority’s opinion and Justice Scalia’s opinion in Egelhoff. However, the

arguments I have set forth demonstrate that the principles underlying Terry

remain sufficiently viable that we must adhere to this well-settled

precedent.

II

I concur in the result because I am convinced that the trial court’s

error was harmless beyond a reasonable doubt. The State proved beyond a

reasonable doubt that Defendant was not so intoxicated that he was

incapable of forming the intent required by the statute. “Evidence that

shows a defendant was not so intoxicated so that he could indeed form the

requisite mens rea includes such things as his ability ‘to devise a plan,

operate equipment, instruct the behavior of others, or carry out acts

requiring physical skill.’” Owens v. State, 659 N.E.2d 466, 473 (Ind.

1995) (quoting Terry, 465 N.E.2d at 1088). The evidence presented at trial

shows that Defendant returned to a party at a trailer, held the partygoers

at gunpoint and ordered them to handover all the phones inside the trailer.

He then forced the victim to walk to a secluded cornfield. After

repeatedly raping her, he led her to his house, which was more than three

miles away. Along the way, he forced the victim to hide from passing cars

and caught on when the victim attempted to trick him. Inside his home,

Defendant hid the victim in the basement and told others in the house not

to come downstairs. Defendant then raped the victim again. Police later

found Defendant and the victim asleep in a bed. Defendant had a gun loaded

and cocked near his right hand. This evidence is sufficient to show beyond

a reasonable doubt that Defendant was capable of forming the intent

required by the rape statute.

RUCKER, J., concurs

-----------------------

[1] This attitude towards intoxication was not limited to Indiana. E.g.,

United States v. Cornell, 25 F. Cas. 650, 657-58 (C.C.D. R.I. 1820) (No.

14,868) (“Drunkenness is a gross vice, and in the contemplation of some of

our laws is a crime . . . .”).

[2] Sanchez also challenges Indiana Code section 35-41-3-5 which provides

for the defense of involuntary intoxication. Because he does not present a

separate argument under this section, we do not address it.

[3] Lord Coke stated that, “[E]very Subject of this Realm, for injury done

to him in bonds, ferris, vel persona [goods, land, or person] . . . may

take his remedy by the court of Law . . . .” Lord Coke’s Second Institute

Explicating Article 40, 55-56 (4th ed. 1671).

[4] The very articles cited by the concurrence make the point that it is

for the legislature to define the crimes. As Professor Bilionis put it in

discussing the classic academic literature criticizing strict liability:

The problem with all of this, as Hart well knew, is that the

Constitution never defines “crime” as such and that few who have worn

the judicial robes have sensed in themselves an individual capacity to

trump forthright legislative decisions to attach the criminal stigma

to X or to any other act or omission that is not privileged by virtue

of a recognized constitutional right.

Louis D. Bilionis, Process, the Constitution, and Substantive Criminal Law,

96 Mich. L. Rev. 1269, 1277 (1998). Indeed, it is notable that none of the

articles on strict liability cited by the concurrence discuss Egelhoff

except to observe it as an example of the demise of substantive due process

limitations on criminal legislation. We think that is no accident. The

problems are quite distinct from both a jurisprudential and precedential

point of view.

[5] Brady v. Maryland, 373 U.S. 83 (1963).

[6] Miranda v. Arizona, 384 U.S. 436 (1966).

[7] Batson v. Kentucky, 476 U.S. 79 (1986).

[8] Ronald J. Allen, Foreward: Montana v. Egelhoff—Reflections on the

Limits of Legislative Imagination and Judicial Authority, 87 J. Crim. L. &

Criminology 633, 644 (1997).

[9] Indiana Code section 35-41-2-1 reads, “A person commits an offense only

if he voluntarily engages in conduct in violation of the statute defining

the offense.”

[10] Thus, although awareness of the likelihood of severe bodily injury is

ordinarily an element of murder, it is not necessary for the voluntarily

intoxicated killer to be convicted of murder.

[11] See Lambert v. California, 355 U.S. 225, 229-30 (1957), held it a

violation of federal due process to convict under a Los Angeles ordinance

prohibiting failure to register as a convicted felon within five days after

residing in the city.

[12] See, e.g., Dotterweich, 320 U.S. at 280-81 (upholding strict liability

of corporate officers for violations by the organization without an

individual mens rea).

[13] See Elliott v. State, 630 N.E.2d 202, 204 (Ind. 1994); McFarland v.

State, 271 Ind. 105, 111, 390 N.E.2d 989, 993 (1979) (“Moreover, we must

recognize that a considerable leeway is allowed even on direct examination

for proof of facts which are not really offered as bearing on the dispute,

however defined, but merely as details which fill in the background of the

narrative and give it interest, color, and lifelikeness.”) (citations

omitted); Buise v. State, 258 Ind. 321, 325, 281 N.E.2d 93, 96 (1972); see

generally Fed. R. Evid. 401 advisory committee’s note; 1 McCormick on

Evidence § 185 (John W. Strong ed., 5th ed. 1999).

[14] See United States v. Park, 421 U.S. 658, 672-73 (1975).

[15] The majority suggests that Defendant engaged in culpable conduct

by consuming alcohol. See Majority Opinion at 15-16. However, the State

has a constitutional obligation to establish every element of a charged

offense, and that includes showing that Defendant engaged in his conduct

intentionally or knowingly when the offense contains such a mens rea

requirement. See, e.g., Ind. Code § 35-42-4-1 (1998) (stating that rape

occurs “when a person … knowingly or intentionally has sexual intercourse

with a member of the opposite sex” under certain defined circumstances).

[16] The United States Supreme Court overruled the federal component

of this holding in Montana v. Egelhoff, 518 U.S. 37 (1996).

[17] The drafters of the Indiana Constitution apparently subscribed to

this view. A proposed amendment to the resolution that became Article 1, §

15 provided that “[n]o person shall be held to answer to any criminal

charge except in such manner as shall be prescribed by law.” Id. at 735.

The fact that this amendment failed, see id. at 736, suggests that the

drafters did not grant the legislature an unfettered power to write rules

of criminal procedure. This reading is reinforced by the concept of

separation of power that the drafters embedded in Article 3, § 1.

[18] It is somewhat difficult to decipher whether Justice O’Connor

sees this right as substantive or procedural because she cites substantive

cases such as In Re Winship, 397 U.S. 358 (1970), as well as procedural

cases such as Chambers v. Mississippi, 410 U.S. 284 (1973). However, I see

her opinion as essentially melding both bodies of law. Cf. discussion

supra page 6. It grants a procedural right – the ability to present

evidence of intoxication – in order to serve substantive goals – the

requirement that the State prove its case on every element beyond a

reasonable doubt.

[19] The fact that the legislature retained the defense of involuntary

intoxication demonstrates that it considers evidence of intoxication

relevant to the issue of intent. See Ind. Code § 35-41-3-5 (1998). The

majority seemingly also would find evidence of intoxication to be relevant

and reliable, as it would allow it to be introduced as “general

background.” See discussion infra. This conclusion appears to contradict

Chief Justice Shepard’s opinion in Swanson v. State, 666 N.E.2d 397 (Ind.

1996), reh’g denied.

[20] This case is distinct from other situations where we have upheld

the exclusion of potentially exculpatory evidence. See, e.g., Hubbard v.

State, 742 N.E.2d 919, 924 (Ind. 2001) (upholding exclusion of polygraph

test results). See also Duff v. State, 508 N.E.2d 17, 21 (Ind. 1987)

(DeBruler, J., dissenting) (discussing “the right of the defendant to

present relevant evidence and to have a fair opportunity to cross-examine

opposing witnesses”), reh’g denied. In those cases, we upheld the

exclusion of relevant evidence based on some flaw in its evidentiary value,

such as its unreliability. Here, the defendant is prevented from

presenting exculpatory evidence not because of a failure in its evidentiary

value, but because of the State’s desire “to ensure that even a defendant

who lacked the required mental-state element – and is therefore not guilty

– is nevertheless convicted of the offense.” Egelhoff, 518 U.S. at 66

(O’Connor, J., dissenting). See also id. at 67 (“[The statute bars] the

defendant’s use of a category of relevant, exculpatory evidence for the

express purpose of improving the State’s likelihood of winning a conviction

… . The plurality’s observation that all evidentiary rules that exclude

exculpatory evidence reduce the State’s burden to prove its case is beside

the point. The purpose of the familiar rules is not to alleviate the

State’s burden, but rather to vindicate some other goal or value … .”)

(emphasis in original).

[21] The Egelhoff opinion is useful in construing Ind. Code § 35-41-2-

5 because the statute was drafted in 1997, apparently in response to

Egelhoff.