(concurring specially).
I concur in the result reached by the court. I disagree, however, with the court’s interpretation of what it means for a criminal defendant to “offer intoxication as an explanation for his actions.” Implicit in the court’s interpretation is the requirement that, before the trial court is required to instruct the jury on the intoxication defense, a defendant not only must raise, but must establish, his intoxication. This requirement reads Minn.Stat. § 609.075 (2000) out of the law.
In State v. Lopez, we stated:
Before the intoxication defense comes into play, a defendant must offer intoxication as an explanation for his actions. “The mere fact of a person’s drinking does not create a presumption of intoxication, and the possibility of intoxication does not create the presumption that a person is rendered incapable of intending to do a certain act.” Put another way, a defendant cannot offer intoxication as an explanation for his action solely by introducing evidence that he may have been drinking.
587 N.W.2d 26, 28-29 (Minn.1998) (quoting State v. Lund, 277 Minn. 90, 92, 151 N.W.2d 769, 771 (1967)) (footnotes omitted). While Lopez requires something more than “introducing evidence that he may have been drinking,” surely something less than establishing intoxication is sufficient. Although we have never indicated the quantum or type of evidence sufficient to offer intoxication as an explanation for a defendant’s conduct, the court acknowledges that at some point evidence of consumption is so overwhelming that it may, by itself, require that a requested intoxication instruction be given. The court concludes that such a point is not ..reached in this case. On the record before us, I believe the court is wrong.
The evidence presented at trial supports the following facts regarding Torres’ consumption of drugs and alcohol in the 12 hours preceding Jesse Springer’s murder: he drank approximately nine beers, smoked an undetermined quantity of marijuana, and snorted 10 to 12 lines of cocaine. Regardless of the specific amounts, St. Martin, Sailor, and Frohn all testified that Torres consumed roughly as many drugs and as much alcohol as they did. Each of these witnesses also testified about his resulting level of intoxication and the impact it had on him. St. Martin testified that, shortly before the crime, he was “getting pretty messed up.” Sailor described himself at that same time as “pretty loaded.” When they arrived at Jesse Springer’s apartment, St. Martin was, by his own admission, “totally screwed out of [his] gourd,” so much so that he remained behind in the van “watching the world spin” when the others entered the apartment. Sailor testified that, when he was in Jesse Springer’s apartment, he was “all drunk and doped up.” Frohn stated that, while he was in the apartment he was “a little drunk” or “sober enough to know what was going on but * ⅞ * still drunk.” Had they been on trial, testifying about their consumption, *620would they not have been entitled to the intoxication instruction? Had Torres taken the stand and testified that he had consumed the amounts and types of intoxicants that St. Martin, Frohn, and Sailor testified that they had consumed, would he not have been entitled to the intoxication instruction? One is left to ask: If the evidence in this case is not sufficient to warrant a jury instruction on intoxication, what quantum and type of evidence would suffice?
The court relies on Tracy Sailor’s testimony that shortly before the murder Torres was “under control” and “calm” as support for its conclusion that Torres did not offer intoxication as an explanation for his conduct. In doing so, the court ignores the testimony of St. Martin, Frohn, and even Sailor, regarding Torres’ consumption of drugs and alcohol preceding the murder. The court’s reliance on Sailor’s statements that Torres was “under control” and “calm” preceding Jesse Springer’s murder also fails to take into account that Sailor was “pretty loaded” and “all drunk and doped up” at the time he was observing Torres’ demeanor. Sailor’s consumption of drugs and alcohol makes his observations regarding Torres’ demeanor suspect. The court cites Lopez, 587 N.W.2d at 29, to support the weight it accords Sailor’s testimony regarding Torres’ demeanor. Lopez is distinguishable. In Lopez, the observer relied on was a physician’s assistant who treated Lopez a few hours before Lopez’s offense. Clearly, the observations of a treating health-care professional as to the subject’s intoxication are more credible than observations of an accomplice who is himself admittedly “pretty loaded.” Further, and importantly, the facts regarding consumption of intoxicating substances in Lopez are vastly different from the instant case. In Lopez, while there was testimony that the group of people that the defendant was with before the shooting had been drinking beer and smoking marijuana and that the defendant “may” have done some of the drinking, there was no testimony or other evidence presented as to the quantity of beer he may have consumed, nor was there testimony or other evidence suggesting that he used any marijuana.
The result of the court’s reasoning is that, short of establishing their actual intoxication, defendants will not be able to make a showing that will require the trial court to issue the requested jury instruction. Without such an instruction, Minn. Stat. § 609.075 is an empty space in the statute books. The legislature could not have intended this result. See Minn.Stat. § 645.16 (2000) (“The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.”); Firstar Corp. v. Comm’r of Revenue, 575 N.W.2d 835, 840 (Minn.1998) (declining to construe statute in such a way as to render it meaningless).
A request for an instruction on voluntary intoxication is to be granted whenever there is sufficient evidence to support a finding of intoxication, not only when the defendant has proved intoxication to the satisfaction of the court. “It is beyond dispute that a party is entitled to an instruction on his theory of the case if there is evidence to support it.” State v. Ruud, 259 N.W.2d 567, 578 (Minn.1977). On the evidence presented at this trial, Torres was entitled to have the jury instructed that it “should consider whether the defendant was intoxicated, and if so, whether the defendant was capable of forming the required intent.” 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 7.03 (4th ed.1999). Torres should have been allowed to present his defense to the jury *621and it was an abuse of discretion for the trial court to refuse the requested instruction. Having stated this, I concur in the judgment of the court because I also believe that, on the record presented, the court’s error was harmless beyond a reasonable doubt. See State v. Kuhnau, 622 N.W.2d 552, 558 (Minn.2001) (noting that error in jury instructions may not require a new trial if error is harmless); State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997) (clarifying the standard for harmless error in Minnesota).