concurring.
Because of our decisions in Petrie v. State, 590 N.E.2d 603 (Ind.Ct.App.1992) and Sturgeon v. State, 575 N.E.2d 679 (Ind.Ct.App.1991) I feel constrained to concur with the majority. Were we, however, writing upon a clean slate I would find no reversible fundamental error in the instruction given in this case.
Initially, I should point out that I have no quarrel with the proposition that an instruction in a criminal case that relieves the state of persuading the jury beyond a reasonable doubt of every element of the offense on trial constitutes fundamental error. This was the teaching of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), wherein the Supreme Court disapproved the use of jury instructions that utilized mandatory or rebut-table presumptions concerning a necessary element of the offense (intent).
First, and foremost, I would observe that there is a substantial distinction in the law between shifting the burden of proof, or persuasion, and shifting the burden of going forward with evidence. Here the instruction did not purport to shift the burden of persuasion to the defendant. The state had the burden of establishing Smith’s blood alcohol level at a level of .10% or higher. Moreover, we can say there is a rational connection between that proof and the fact to be inferred, intoxication, in that the latter is more likely than not to flow from the former. See County Court of Ulster Cty. v. Allen 442 U.S. 140, 168, 99 S.Ct. 2213, 2230, 60 L.Ed.2d 777 (1979). Thus, the instruction was not inherently improper.
In terms then of the Indiana doctrine of fundamental error, did it shift the burden of proof to the defendant? That is to say, was the error so basic and blatant that the defendant could not have had a fair trial? The court’s companion instruction defining prima facie evidence advised the jury that it was sufficient to prove a fact until contradicted and overcome by evidence to the contrary. The court in Sturgeon found similar language “could easily have [been] understood” by a reasonable juror as shifting the burden of persuasion. I agree that to the extent that such a risk existed, the instruction was objectionable and should on proper objection or tender have been clarified. But no objection or defense tender was made. Clearly, under the language of the instruction “evidence to the contrary” could have come from the state’s other evidence or from cross examination. Equally clearly, the defense was entitled to so argue to the jury. The defect was not such that it should be found to constitute fundamental error under our normal definitions of that term.