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 selves 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.1 This is what Justice DeBruler meant when he stated in a later case that “[wjhenever the State is required to prove a particular state of mind on the part of the defendant, evi*523dence 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.”).2 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 513, 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, 118 S.Ct. 1060, 140 L.Ed.2d 121 (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 Em-mert 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 *524ceased 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 519. This is because “a statute may properly impose criminal liability for some actions without a mens rea” element. Id. at 518. 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) (“[PJrocess considerations have been shaping the Supreme Courts 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, 1320-21.3 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 eases suggest that criminal defendants have a right to present evidence to rebut the States 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 *525sufficient 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 State v. Brown, 122 N.M. 724, 931 P.2d 69, 77 (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, 116 S.Ct. 2013, 135 L.Ed.2d 361 (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, 116 S.Ct. 2013.4 Four other justices in Egelhoff determined that the ability to present such exculpatory evidence was not a “fundamental principle of justice,” id. at 43, 116 S.Ct. 2013 (opinion of Scalia, J.) and a fifth voted on other grounds to uphold the conviction. Id. at *52656, 116 S.Ct. 2013 (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.5 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 defendants constitutional right to try.6
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 *527the offense. 518 U.S. at 61, 116 S.Ct. 2013 (O’Connor, J., dissenting).7 And, of course, the majority’s opinion gives the legislature carte blanch to eliminate a defendants right to present evidence in other circumstances on the theory that it is merely defining elements. This is perhaps the most disturbing aspect of todays 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, 116 S.Ct. 2013. 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 519. 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.. The majority suggests that Defendant engaged in culpable conduct by consuming alcohol. See Majority Opinion at 517-518. 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).
. The United States Supreme Court overruled the federal component of this holding in Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996).
. 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.
. 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, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), as well as procedural cases such as Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). However, I see her opinion as essentially melding both bodies of law. Cf. discussion supra page 513. 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.
. 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.
. 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, 116 S.Ct. 2013 (O'Connor, J., dissenting). See also id. at 67, 116 S.Ct. 2013 ("[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).
. 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.