concurring in part and dissenting in part.
While I agree that we should apply retroactively the rule announced in Terry v. State (1984), Ind., 465 N.E.2d 1085, I dissent from the decision to reverse the defendant's conviction because I am satisfied that the refusal of the instruction was harmless beyond a reasonable doubt.
When this Court voided the legislature's policy decision to disallow voluntary intoxication as a defense in cases such as this, it was plain that we did not intend to grant general absolution for perpetrators who plead intoxication. Chief Justice Givan wrote for the Court:
A defendant in Indiana can offer a defense of voluntary intoxication to any crime. 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.
Id., 465 N.E.2d at 1088.
While I agree with the majority that whether a defendant possessed adequate *1198mens rea is initially a jury question, deciding an appeal requires further analysis. We should consider whether the evidence at trial was such that the trial court's refusal of the instruction made any difference.
The evidence at trial about this defendant was that he was able to drive his van without visible impairment, able to hold intelligent conversations with his friends, and competent to conduct business at his bar. There was testimony that people who observed him did not notice anything unusual about his behavior, speech, or motor skills. Finally, he was able to aim and fire a shotgun with deadly accuracy.
To set aside the conviction of such a person seems to me more contrary to our decision in Terry than consonant with it.