concuring in part and dissenting in part.
I concur as to Parts II, III and IV.
I concur in Part V in the understanding that reversal of the attempted murder conviction requires a discharge of the defendant upon that charge and prohibits a retrial upon that charge. If it were otherwise, the robbery conviction would be tainted as discussed in the majority opinion.
I dissent as to Part I. The intoxication instruction here placed the burden upon defendant to prove “the defense of intoxication.” To be sure, it did not set forth the degree of proof necessary for the carrying of the burden, as was the case in Fowler v. State (1988) Ind., 526 N.E.2d 1181, but it very definitely fixed a burden of proof. It did not, as contemplated in the Fowler decision, merely require defendant to come forward with some evidence of intoxication as might create reasonable doubt in the minds of the jury.
In my view, the instruction would have been just as objectionable had it estab*1077lished the burden as of the evidence.” But suffice it to say that in the case before us the only standard dealing with burden of proof is that contained in the instruction which sets forth the burden of the State with respect to the elements of the crime. Quite clearly this burden requires proof beyond a reasonable doubt. A reasonable jury of lay persons would logically extrapolate “the beyond a reasonable doubt” standard into the burden for proving the intoxication “defense.” by a preponderance
The majority quotes a passage from Melendez v. State (1987) Ind., 511 N.E.2d 454 which at first blush appears to be inconsistent with the proposition that intoxication is not a defense upon which defendant bears the burden of proof. It must be noted, however, that the seemingly inconsistent statement is made in the context of a sufficiency of evidence discussion. The court was considering whether the evidence was sufficient to sustain the conviction in light of Melendez’s appellate argument that the evidence demonstrated that he was so intoxicated as to have been unable to form the intent to kill. The focus was upon the validity of the verdict in light of the evidence. The only issue under discussion at that point was whether the evidence of intoxication negated the intent element as a matter of law. To the extent that the court gratuitously added that defendant bore the burden upon the issue, it was dictum. In the context of the discussion it did not constitute a holding as to the burden of proof which might permissibly be included in an instruction to the jury. It was merely a comment with respect to appellate review and said, in effect, that unless defendant has proved intoxication so convincingly as to make the matter of intent a question of law, the verdict of the jury will not be overturned.
In Melendez, the jury was not instructed that defendant had a burden of proof with respect to intoxication. To the contrary, in discussing the semantic confusion in referring to intoxication as a “defense” the unanimous opinion of our Supreme Court made clear that the word “defense” merely means that evidence of intoxication should be considered by the jury “as would any other mental incapacity of such severe degree that it would preclude the ability to form intent”. 511 N.E.2d at 457. The instruction given here was therefore not unlike the instruction which was condemned in Fowler.
The evidence in the case before us overwhelmingly discloses that Hall was not so intoxicated as to be unable to form the requisite intent to commit the robbery. The giving of the instruction was therefore, in my view, harmless error.
As does the majority, I vote to reverse the conviction for attempted murder but would go further and order discharge of the defendant upon that charge. In that light I then vote to affirm the robbery conviction and agree that the sentence upon that conviction should run consecutive to the sentence for confinement.