dissenting.
I respectfully dissent.
The intoxication instruction here at issue was clearly error in light of cases decided subsequently to the trial of this action. That error was not fundamental, however. In Street v. State, 567 N.E.2d 102 (Ind.1991), our supreme court held that the giving of such an instruction does not rise to the level of fundamental error if the instruction did not call for proof beyond a reasonable doubt or for proof of specific facts. The court restated this holding in Hall v. State, 574 N.E.2d 287 (Ind.1991).
In this case, the instruction did not require proof beyond a reasonable doubt or proof of specific facts. Moreover, as the post-conviction court found, there were numerous other instructions, which considered together properly instructed the jury that the State had the burden of proving all of the elements of all crimes by proof beyond a reasonable doubt. Because the error was not fundamental, Seeley waived the issue by failing to object at trial and failing to raise the issue in her direct appeal. I would affirm the post-conviction court in all respects.