dissenting.
I dissent. I disagree with the majority's conclusion that the jury was properly instructed on the element of specific intent. I also disagree with the majority's conclusion that Douglas was not entitled to an instruction on the defense of intoxication.
I.
In support of its position that the jury instruction on attempted robbery was adequate, the majority cites Alexander v. State (1988), Ind., 520 N.E.2d 99, a case involving attempted burglary. Although there are no cases in Indiana concerning specific intent instructions in attempted robbery cases, I can discern no principled reason for the majority to seize on language in an attempted burglary case and apply it here. That is especially true when our supreme court has undertaken a thorough analysis of the specific intent element of a crime in another context, namely: cases involving attempted murder. In my view those cases are better reasoned and provide a more appropriate analogy to the case before us.
In Zickefoose v. State (1979), 270 Ind. 618, 388 N.E.2d 507, our supreme court held that there are two necessary elements in the crime of attempted murder: first, the defendant must have been acting with a specific intent to commit the crime, and second, he must have engaged in an overt act which constitutes a substantial step toward the commission of the crime. Id. at 510. When an instruction purports to set forth all of the elements of a crime necessary to a conviction, the instruction is fatally defective if a necessary element is omitted. Duling v. State (1976), 170 Ind.App. 607, 354 N.E.2d 286.
Citing the foregoing authority, our supreme court reversed the defendant's conviction for attempted murder in Smith v. State (1984), Ind., 459 N.E.2d 355, because the trial court failed to instruct the jury that it must find that the defendant had the specific intent to commit murder in order to be found guilty of attempted murder. The specific jury instruction at issue in Smith was as follows: "You are instructed that the essential elements of the erime of attempted Murder which the State of Indiana must prove beyond a reasonable doubt are the following: 1. That the [Defendant] knowingly, 2. Engaged in conduct that constituted a substantial step toward the commission of Murder." Id. at 357. Nowhere in the instruction was there a statement to the effect that if the defendant were to be found guilty of attempted murder, then there must first be a finding that when he engaged in the proseribed conduct, he intended to kill the victim. Id. at 358. The court observed:
Thus, we are left with instructions which would lead the jury to believe that the Defendant could be convicted of attempted murder if he knowingly engaged in conduct which constituted a substantial step toward the commission of murder.... An *823instruction which correctly sets forth the elements of attempted murder requires an explanation that the act must have been done with the specific intent to kill.
Id. The offending instruction in that case is essentially the same as the one before us.
In Abdul-Wadood v. State (1988), Ind., 521 N.E.2d 1299, reh'g denied, our supreme court also reversed the defendant's conviction for attempted murder because the trial court failed to instruct the jury that specific intent to kill is a requisite element of the crime of attempted murder. The instruction involved in that case dictated: "To sustain the charge of attempted murder, the State must prove the following propositions: First: That the Defendant knowingly engaged in conduct against [the victim]. Second: That the Defendant's conduct against [the victim] constituted a substantial step toward the commission of the crime of murder." Id. at 1300. Citing Smith v. State (1984), Ind., 459 N.E.2d 355, the court held that the giving of the foregoing instruction was fundamental error and a conviction obtained thereby would be a gross miscarriage of justice. In so holding the court observed:
The error in the instruction creates a serious risk of wrongful conviction. This instruction purports to set out the complete burden of the prosecution. It is an instruction, which when given at a trial, creates a moment of focus and special attention. The judge takes special care in reading it loudly and distinctly. The jury perceives its special and crucial character. Armed with the information in this instruction, the jury could rationally deem itself authorized to convict because it was convinced beyond a reasonable doubt that the accused deliberately engaged in cooperative conduct, in a series of developing events, which culminated in an enterprise carrying the death risk, even though there could have been no appreciation of that risk at the time of the cooperative conduct.
Abdul-Wadood, 521 N.E.2d at 1300-01.
In like fashion in Jackson v. State (1989), Ind., 544 N.E.2d 853, our supreme court reversed the defendant's conviction for attempted murder because of a faulty jury instruction. Again citing Smith, 459 N.E.2d at 357, the court noted that when an instruction purports to set forth all of the elements of the crime necessary for a conviction, the instruction is fatally defective if a necessary element is omitted. Id. at 854. The instruction given in that case was, "A person who knowingly or intentionally kills another human being commits a murder, a felony. To convict the defendant of attempt, the state must have proved each of the following elements: 1. The defendant, Robert Jackson; 2. knowingly; 3. attempted to kill; 4. [the vie-tim]." The court reversed noting that the instruction did not inform the jury of a nee-essary element of the crime, namely: that the defendant with intent to kill the victim, took a substantial step to accomplish that end. Id. at 854.
Underscoring the significance of informing the jury on the intent element in crimes of attempt, our supreme court has held: "By definition, there can be no 'attempt' to perform an act unless there is a simultaneous 'intent' to accomplish such act. Simply stated, in order to commit a crime, one must intend to commit that crime while taking a substantial step toward the commission of the crime." Spradlin v. State (1991), Ind., 569 N.E.2d 948, 951 (reversing a conviction for attempted murder because the instructions did not inform the jury that the state must prove beyond a reasonable doubt that the defendant, with intent to kill the victim, engaged in conduct which was a substantial step toward the killing).
The rationale justifying reversal in the forgoing cases is no less compelling here. The instructions are essentially the same and the result reached should be the same as well. The law is clear that it is fundamental error to fail to instruct the jury on an essential element of the erime of attempted murder, namely, an intent to kill the victim. Woodcox v. State (1992), Ind., 591 N.E.2d 1019. However, whether the case involves attempted robbery or attempted murder there nonetheless "can be no 'attempt' to perform an act unless there is a simultaneous 'intent' to accomplish such act." Spradlin, 569 N.E.2d at 951. In this case the instructions do not impose upon the State the burden of proving an essential element of the crime, viz., an *824intent to take property from another person or from the presence of another person. Accordingly, I would reverse Douglas's conviction and remand this cause for a new trial.
IL
The majority's treatment of the trial court's instruction on the intoxication defense is even more troubling. Citing Weyls v. State (1992), Ind.App., 598 N.E.2d 610, trans. denied, the majority takes the position that there was an inadequate evidentiary basis in this case to justify giving an instruction on the intoxication defense. However, reliance on Weyls is misplaced. In that case the defendant complained that the trial court erroneously refused to give a tendered instruction on the defense of intoxication. Relying on well-established case authority, this court observed that when reviewing a trial court's refusal to give a tendered instruction, we consider 1) whether the instruction correctly states the law, 2) whether the evidence of record supports giving the instruction, and 3) whether the substance of the tendered instruction was covered by other instructions. Weyls, 598 N.E.2d at 615. We then held the evidence of record did not support giving Weyls's tendered instruction and thus the trial court did not err in refusing to give it.
Unlike Weyls, this case does not involve the trial court's refusal to give an instruction. Rather, it involves the trial court giving an instruction based on a statute that has since been ruled void and without effect. Further, in giving the erroneous instruction, the trial court itself acknowledged "(there was some evidence introduced during the trial indicating that the defendants may have been intoxicated at the time of the offense...." T.R. at 62. Obviously, there was evidence of ree-ord to support the giving of an intoxication defense instruction. Otherwise, the trial court would not have found it necessary to dispel the impact of such evidence. The majority's position that there was an inadequate evidentiary basis in this case to justify giving an instruction on the defense of intoxication not only second guesses the trial court on this point, but more importantly invades the province of the jury.
Because Terry v. State (1984), Ind., 465 N.E.2d 1085 has retroactive application, see Pavey v. State (1986), Ind., 498 N.E.2d 1195, the critical inquiry here is whether the giving of the erroneous instruction requires reversal. We must review this question in light of the fundamental error rule because Douglas did not tender his own instruction nor object to the trial court's erroneous one. A defendant waives the right on appeal to complain that the trial court's instructions are defective unless the defendant tendered correct instructions on the disputed issue. Clemons v. State (1981), Ind., 424 N.E.2d 113; Kelly v. State (1992), Ind.App., 586 N.E.2d 927, trans. denied. However, despite waiver we may review an issue on appeal where fundamental error is involved. In order to be fundamental, an error must be so prejudicial to the rights of the defendant that he could not have received a fair trial. Howey v. State (1990), Ind., 557 N.E.2d 1326. Fundamental error has also been characterized as error which constitutes a clear, blatant, violation of basic and elementary principles, and the resulting harm or potential for harm must be substantial. Grey v. State (1990), Ind., 553 N.E.2d 1196, reh'g denied.
The record here reveals that Douglas and his companions consumed nearly all of a one-half quart bottle of whiskey, ingested Valfum and smoked marijuana before proceeding to the victim's home. The record also reveals that prior to the robbery Douglas was staggering and slurring his speech. Whether the fact that Douglas was able to walk to the victim's home, knock on the victim's door, fire two shots, hide the shotgun, and make his way back to his friend's house dispelled Douglas's claim of intoxication is a matter the jury should have been allowed to decide. However, the erroneous instruction given by the trial court removed Douglas's intoxication defense from the jury's consideration. In my view the error here was fundamental. It constituted a clear, blatant, violation of basic and elementary principles, and the resulting harm was substantial. When error in the giving of a particular instruction "misleads the jury as to the law of the case" then reversal is justified. Walker v. State (1986), Ind., 497 N.E.2d 543, 545. Thus, in addition to the reasons set forth in Section I above, I *825would also reverse Douglas's conviction on these additional grounds and remand this cause for a new trial.