dissenting.
I respectfully dissent from the portion of the majority decision finding reversible error as to the instructions regarding the burden of proof when asserting a defense of voluntary intoxication. The manner of instructing a jury lies within the sound discretion of the trial court. Anderson v. State, 653 N.E.2d 1048, 1051 (Ind.Ct.App.1995). The court’s decision regarding instructions will not be reversed unless an instruction error is such that, taken as a whole, the charge to the jury misstates the law or otherwise misleads the jury. Id.
Here, the jury was given two instructions regarding the defense of voluntary intoxication. The first instruction noted that the intoxication would have to be of a sufficient degree to render the defendant “incapable of having the specific intent to kill a human being.” The instruction then cautioned: “The State has the burden of disproving the defense beyond a reasonable doubt.” The second instruction noted three times that the defendant had the burden of producing evidence of intoxication. See State v. Huffman, 643 N.E.2d 899, 900 (Ind.1994) (court noted difference between burden of production and burden of persuasion, the latter always remaining with the State, and noted that instruction to jury regarding “defendant’s burden of proof could only serve to confuse the jurors and prejudice the defendant”).
A review of the record does not reveal an objection to the second instruction. See Hall v. State, 574 N.E.2d 287, 288-289 (Ind.1991) (failure to make contemporaneous trial objection where instruction impermissibly shifted burden regarding intoxication defense, but not burden to convict, did not preserve error for appellate review). Harmless error analysis is applicable to the circumstances presented here. Cf id. The instructions as a whole informed the jury that the burden of proving Moore’s guilt rested solely with the State. Accordingly, I would vote to affirm the conviction.