51. I respectfully dissent. This was not a jury trial. The trial court, in its role as the factfinder, specifically stated that it had a reasonable doubt that Campos intended to kill Gutierrez and that it also had a reasonable doubt that, at the time the acts were committed, Campos knew that his acts created a strong probability of death or great bodily harm. See NMSA 1978, § 30-2-l(B) (setting forth elements of felony murder and second-degree murder). The State did not challenge the trial court’s finding of reasonable doubt, and that finding is binding on this Court. See SCRA 1986, 12-213(A)(3) (Repl.Pamp.1992); Castle v. McKnight, 116 N.M. 595, 597, 866 P.2d 323, 325 (1993). The trial court’s finding of reasonable doubt cannot be ignored, nor can this finding be reconciled with the rule in State v. Ortega, 112 N.M. 554, 563, 817 P.2d 1196, 1205 (1991). Under Ortega, a defendant may not be convicted of felony murder absent a finding that the defendant either “intended to kül[] or was knowingly heedless that death might result from his conduct[ ].” Id. at 563, 817 P.2d at 1205. Despite the trial court’s reasonable doubt and the Ortega rule, the trial court concluded that because its doubt was based upon the voluntary intoxication of the Defendant it could not be considered for either felony murder or second-degree murder. Therefore, the trial court felt compelled to convict Campos of felony murder. Contrary to the majority’s view, it is my opinion that the unchallenged finding of reasonable doubt by the trial court supported the conclusion that Campos was not guilty of either felony murder or second-degree murder. I am also of the opinion, contrary to the majority, that the court’s conclusion that our case law prevented him from considering the voluntary intoxication of the defendant was error as a matter of law.
52.First and second-degree murder have elements of subjective malice. When death results from intentionally-inflicted harm, the resultant crime is either murder or voluntary manslaughter. See State v. Aragon, 85 N.M. 401, 402, 512 P.2d 974, 976 (Ct.App.1973) (holding that one set of facts may support either first- or second-degree murder or voluntary manslaughter). The killing is murder if the state proves that the defendant not only intended to do the act that killed the victim but also had a state of mind indicating malice. See § 30-2-1; Ortega, 112 N.M. at 562, 817 P.2d at 1204 (denoting four mental states that support conviction for first- or second-degree murder and holding that to prove felony-murder, state must show that defendant had malice of one of those mental states); State v. Ibn Omar-Muhammad, 102 N.M. 274, 277, 694 P.2d 922, 925 (1985) (holding that state must prove defendant had subjective knowledge of facts to establish malice necessary for depraved-mind murder); Torres v. State, 39 N.M. 191, 194, 43 P.2d 929, 931 (1935) (stating that if state proves killing with only ordinary malice, it is second-degree murder, but if state proves intensified malice, defendant may be convicted of first-degree murder).
53. Before 1980, murder was broadly defined as an unlawful killing with malice aforethought, see State v. Smith, 89 N.M. 777, 779, 558 P.2d 46, 48 (Ct.App.1976), and malice to satisfy second-degree murder could be implied if there was no evidence of “considerable provocation,” see State v. Padilla, 66 N.M. 289, 293, 347 P.2d 312, 314 (1959). No other proof of a specific state of mind was required for conviction of second-degree murder. However, in 1980 the legislature amended the murder statutes. I do not agree with the majority’s characterization of the legislature’s intent underlying this modification as “merely” modernizing the terminology in the statutes. By amending Section 30-2-1(B), the legislature defined malice more narrowly, introducing a new “knowledge” element. Now, for second-degree murder the state must prove beyond a reasonable doubt that a defendant at least knew that his act created a strong probability of death or great bodily harm. Section 30-2-1(B); see also State v. Beach, 102 N.M. 642, 644, 699 P.2d 115, 117 (1985) (explaining that second-degree murder “now contains an element of subjective knowledge.”); Commonwealth v. Sama, 411 Mass. 293, 582 N.E.2d 498, 501 (1991) (holding that in second-degree murder prosecutions subjective, not objective, knowledge must be shown). This is precisely the issue on which the trial court had a reasonable doubt.
54. Intoxication is a circumstance that should be considered when determining the subjective state of mind of a defendant charged with murder. “ ‘[I]ntoxication’ means a disturbance of mental or physical capacities resulting from the introduction of substances into the body.” Model Penal Code § 2.08(5)(a) (1985). “Like mistake and mental illness, a state of intoxication may also negate a required offense element, and when raised in this context is a failure of proof defense.” 1 Paul H. Robinson, Criminal Law Defenses § 22, at 75 (1984). The common-law rule followed in New Mexico is that “an act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.” Black’s Law Dictionary 822 (6th ed. 1990); State v. Tapia, 81 N.M. 274, 275, 466 P.2d 551, 552 (1970) (stating the principle but holding that because no specific intent statutorily required for second-degree murder, intoxication not a defense to such a charge); State v. Cooley, 19 N.M. 91, 101, 140 P. 1111, 1114 (1914) (holding intoxication not a consideration for second-degree murder because malice could be implied from commission of a killing without provocation).
55. Second-degree murder is not a “specific-intent” or “general-intent” crime, but requires proof of specific knowledge. In Ortega, we explained that the state of mind necessary for second-degree murder is “specific knowledge,” but we stated that we did not mean to imply that felony murder is a “specific-intent crime.” 112 N.M. at 565 n. 9, 817 P.2d at 1207 n. 9. I do not believe, however, that Ortega meant to imply that felony murder is only a “general-intent crime.”
56. A “general-intent” crime, in its broadest sense, is one in which a particular criminal intent is not specified in the statute. When a statute is silent regarding a criminal intent element, we presume general criminal intent as an essential element of the crime unless it is clear that the legislature intended to omit that element. Santillanes v. State, 115 N.M. 215, 218, 849 P.2d 358, 361 (1993). General criminal intent is defined as “conscious wrongdoing,” or “the purposeful doing of an act that the law declares to be a crime.” Omar-Muhammad, 102 N.M. at 278, 694 P.2d at 926. New Mexico has long held that evidence of voluntary intoxication is not admissible for general-intent crimes.
57. When the legislature defines a crime (like manslaughter, for example) only in terms of a prohibited act and its commission does not rely on a particular state of mind, the state of mind of the defendant in regard to the result is irrelevant — we are only concerned that the defendant had a general criminal intent in regard to the unlawful act that produced the result. See State v. Bitting, 162 Conn. 1, 291 A.2d 240, 242 (1971) (‘When the elements of a crime consist of a description of a particular act and a mental element not specific in nature the only issue is whether the defendant intended to do the proscribed act. If he did so intend, he has the requisite general intent for culpability.”); State v. Kirkaldie, 179 Mont. 283, 587 P.2d 1298, 1304 (1978) (stating that state of mind is at issue in charge of deliberate homicide requiring proof that defendant committed act knowing result, so intoxication is relevant, but intoxication is not relevant in a negligent homicide charge because a specific state of mind is not at issue under that charge); cf. Martin v. State, 56 Ala.App. 33, 318 So.2d 772, 774 (stating that intoxication is not a defense to voluntary manslaughter and affirming conviction in case in which there was no evidence of provocation but defendant was intoxicated when he pushed victim into water), cert. denied, 294 Ala. 765, 318 So.2d 775 (1975); People v. Duffield, 20 Mich.App. 473, 174 N.W.2d 137 (1969) (holding that intoxication isn’t available in a “non-specific” intent crime like manslaughter), aff'd, 387 Mich. 300, 197 N.W.2d 25 (1972).
58. Intoxication may affect cognitive processes and prevent a person from coolly deliberating or knowing the consequences of his acts, but it usually has no effect on whether a person is purposefully doing something declared to be a crime. For example, there is no question that a drunk driver is purposefully driving his car; he just does not care that what he is doing is a crime. “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.” Terry v. State, 465 N.E.2d 1085, 1088 (Ind.1984).
59. Intoxication may negate a specific subjective state of mind. Part of the confusion in our common law regarding when it is proper to allow consideration of intoxication arises from distinguishing crimes based solely upon their “specific-intent” or “general-intent” status. As a term of art, a “specific-intent crime” is one for which a statute expressly requires proof of “intent to do a further act or achieve a further consequence.” State v. Bender, 91 N.M. 670, 671, 579 P.2d 796, 797 (1978). Our courts have long followed a blanket rule that intoxication is a consideration only for first-degree murder and other “specific-intent crimes” without examining whether intoxication may also negate states of mind besides the intent to achieve a further act or consequence. I believe they did so because until 1980 our homicide statutes contained no other express state of mind requirements.
60. I agree with professors LaFave and Scott that
it may be said that it is better, when considering the effect of the defendant’s voluntary intoxication upon his criminal liability, to stay away from those misleading concepts of general intent and specific intent. Instead, one should ask, first, what intent (or knowledge) if any does the crime in question require; and then, if the crime requires some intent (knowledge), did the defendant in fact entertain such an intent (or did he in fact know what the crime requires him to know).
1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 4.10(a), at 554 (1986) (footnotes deleted); see also State v. Lunn, 88 N.M. 64, 73-74, 537 P.2d 672, 681-82 (Ct.App.) (Sutin, J., dissenting) (urging the Supreme Court to adopt a rule allowing a jury to weigh the effect of intoxication on a defendant’s mental capacity to determine whether he was able to form the malice necessary for conviction of second-degree murder despite the fact that it is not a specific-intent crime), cert. denied, 88 N.M. 318, 540 P.2d 248 (1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 793, 46 L.Ed.2d 648 (1976); Note, Intoxication as a Criminal Defense, 55 Colum.L.Rev. 1210, 1216 (1955) (stating that if “implied malice requires the defendant to have consciously created a great risk of death to be guilty of murder, proof of intoxication making the defendant unaware of the risk should be admissible to negate malice and thus reduce the crime to manslaughter”).
61. The capacity to possess a specific state of mind may be just as affected by intoxication as the capacity to intend to do a further act. To support conviction for first-degree murder, for example, the state must prove that the defendant had a specific state of mind in which he “coolly deliberated” before he carried out his intentions. This particular state of mind is not what makes first-degree murder a “specific-intent crime” — and yet it is this specific state of mind that proof of intoxication may also negate. See State v. Padilla, 66 N.M. 289, 293, 347 P.2d 312, 314 (1959) (approving instruction that evidence of intoxication, even if voluntary, may be used in determining whether “the mind of the defendant was incapable of that cool and deliberate premeditation necessary to constitute murder in the first degree”).
62. Just as the state of mind of “cool deliberation” does not make first-degree murder a “specific-intent crime,” “knowing” does not make second-degree murder a “specific-intent crime.” Nevertheless, “knowing” is a specific state of mind that may be affected by external influences such as extreme intoxication or internal mental deficiencies that do not rise to the level of insanity. We have long recognized this principle because we have always held that involuntary intoxication may be a defense to either first- or second-degree murder. See SCRA 1986, 14-5106. The only rationale for allowing involuntary intoxication as a defense at all is because intoxication in fact may negate the malice for murder. Cf. State v. Privett, 104 N.M. 79, 82, 717 P.2d 55, 58 (1986) (stating that in a charge of murder a jury must consider the effect of intoxication upon a defendant’s “state of mind”).
63. Citing to Beach, the majority opinion notes that this Court has consistently refused to allow consideration of voluntary intoxication or diminished capacity in second-degree murder, and should continue to do so. In Beach, however, this Court refused to allow a diminished capacity instruction for second-degree murder because of its blanket conclusion that second-degree murder is not a “specific-intent crime” and because the Court felt bound by the existing criminal uniform jury instructions limiting diminished capacity defenses to willful and deliberate murder and other specific-intent crimes. 102 N.M. at 644, 699 P.2d at 117. Jury instructions, however, are controlled by and are a reflection of statutory and common law; they are not binding precedent upon this Court. See State v. Wilson, 116 N.M. 793, 795, 867 P.2d 1175, 1177 (1994) (“The Supreme Court will amend, modify, or abolish uniform jury instructions when such instructions are erroneous.”).
64. Moreover, the Beach Court did not consider whether voluntary intoxication may affect subjective specific knowledge to the degree that a defendant may not know the likely consequences of his act. Further, the Court improperly lumped manslaughter with second-degree murder in considering whether intoxication is relevant to the elements required for conviction for those crimes, erroneously stating that both crimes had a knowledge element. See 102 N.M. at 645, 699 P.2d at 118. I disagree with Beach to the extent that it holds that voluntary intoxication and diminished capacity are not factors that may be considered in determining whether the state has met its burden of showing the defendant had knowledge of the likely consequences of his acts beyond a reasonable doubt. Moreover, I agree with the principles this Court stated in Padilla, 66 N.M. at 293-94, 347 P.2d at 315-16, in which we explained that mental deficiencies less than insanity may affect the condition of the mind and its abilities. Extreme intoxication, even if voluntary, may affect the ability to reason and appreciate consequences as fully as it may affect the ability to deliberate.
65. I am compelled by the principle that where the existence of a specific intent or
state of mind is a necessary element of a crime, the jury in determining the intent or state of mind with which a defendant acted may take into consideration factors that may affect that state of mind. Defendants charged with second-degree murder may present evidence of extreme intoxication to rebut an inference of subjective knowledge. There is support for this conclusion from the holdings of our sister states. See, e.g., Helms v. State, 254 Ala. 14, 47 So.2d 276, 280 (1950); State v. Watkins, 126 Ariz. 293, 614 P.2d 835, 843 (1980) (In Banc) (stating that when second-degree murder statute includes mental states of “intentionally,” “knowingly,” or “recklessly,” intoxication may affect intentional or knowing conduct, but not reckless conduct); People v. Foster, 19 Cal.App.3d 649, 97 Cal.Rptr. 94, 98 (1971) (stating that although knowledge is not identical with intent, it is mental state to which intoxication has obvious relevance, and if knowledge is a requisite element of a crime, court must instruct on intoxication if there is sufficient evidence); People v. Gross, 52 Ill.App.3d 765, 10 Ill.Dec. 419, 423, 367 N.E.2d 1028, 1032 (1977); People v. Hicks, 35 Ill.2d 390, 220 N.E.2d 461 (1966), cert. denied, 386 U.S. 986, 87 S.Ct. 1295, 18 L.Ed.2d 236 (1967); Commonwealth v. Sama, 411 Mass. 293, 582 N.E.2d 498, 501 (1991) (stating that “[e]vidence of intoxication certainly bears on the defendant’s ability to possess the requisite knowledge of the circumstances in which he acted”); State v. Warren, 104 N.J. 571, 518 A.2d 218, 220 (1986) (explaining that when the legislature modified its murder statutes it replaced “specific-intent” crimes with “purposely” and “knowingly’’ and replaced “general-intent” crimes with “recklessness” and “criminal negligence”); People v. Davis, 18 A.D.2d 644, 235 N.Y.S.2d 282, 283 (1962), aff'd, 13 N.Y.2d 1151, 247 N.Y.S.2d 140, 196 N.E.2d 569 (1964).
66. Though the majority opinion cites to a “clear majority” position on voluntary intoxication, that question of law is far from settled. The United States Supreme Court is currently reviewing a constitutional challenge to the exclusion of evidence of voluntary intoxication as it relates to the formation of the “knowledge” mens rea of the offense. See State v. Egelhoff, 272 Mont. 114, 900 P.2d 260 (1993), cert. granted, Montana v. Egelhoff, — U.S. -, 116 S.Ct. 593, 133 L.Ed.2d 514 (1995) In Egelhoff, the Montana Supreme Court held that the instruction that prevented the jury from considering defendant’s voluntary intoxication to determine whether he had requisite mental state to “knowingly” cause the death of another relieved the State of part of its burden to prove beyond a reasonable doubt every element of the offense charged and thus denied defendant his right to due process. 900 P.2d at 266. The Egelhoff coart was concerned with the defendant’s lack of opportunity to present rebuttal evidence that the intoxication had precluded him from forming the requisite mental state. As a result, the Montana Court concluded that the prosecution’s burden of proof for the element of the mental state was reduced. Id. at 265.
67. In this case, the evidence of intoxication was presented to the factfinder and he had a reasonable doubt as to whether Campos was able to form the requisite mental state of “knowledge,” i.e. “that Campos intended to kill Gutierrez or knew his acts created a strong probability of death or great bodily harm.” The trial court’s subsequent conclusion that in spite of his reasonable doubt he would not consider the Defendant’s voluntary intoxication and therefore find him guilty of felony murder was error. In my opinion, it is immaterial whether the lack of specific intent or subjective knowledge is the result of mental illness, involuntary or voluntary intoxication, or another disability preventing the defendant from having the requisite state of mind required for the commission of the crime charged. In my opinion, there is no legitimate difference in effect between voluntary or involuntary intoxication on the required mental state of the defendant. If the subjective knowledge required of the defendant by the offense charged is vitiated by the intoxication or, as in this case, created a reasonable doubt in the mind of the factfinder, that evidence is always relevant and should be considered. The effect of intoxication on the culpable knowledge of. the defendant is the legally significant factor, not whether the intoxication is voluntary or involuntary.
68. Contrary to the majority view, it is my opinion that evidence of intoxication, voluntary or involuntary, must be considered by the factfinder to reduce any type of first-degree murder to second-degree murder or voluntary manslaughter, or second-degree murder to voluntary manslaughter. It cannot be used, however, to reduce murder or voluntary manslaughter to involuntary manslaughter or for that matter to completely excuse a defendant from the consequences of his unlawful act.
69. For the above-stated reasons, I respectfully dissent.