Sanchez v. State

ATTORNEYS FOR APPELLANT

Susan K. Carpenter
Public Defender of Indiana

Gregory L. Lewis
Deputy Public Defender
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana

Barbara Gasper Hines
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

GUADALUPE A. SANCHEZ, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 92S03-0009-CR-518
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 92A03-9908-CR-322
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE WHITLEY CIRCUIT COURT
The Honorable James R. Heuer, Judge
Cause No. 92C01-9807-CF-00124
__________________________________________________________________

ON PETITION FOR TRANSFER

__________________________________________________________________

June 26, 2001

BOEHM, Justice.
We hold that Indiana Code section 35-41-2-5, prohibiting the use of
evidence of voluntary intoxication to negate the mens rea requirement in
criminal cases, does not violate the Indiana Constitution.

Factual and Procedural Background

On the night of July 6, 1998, Guadalupe Sanchez attended a birthday
party in a trailer in Allen County, Indiana. All nine people at the party
were drinking and some were smoking marijuana. Sanchez was noticeably
intoxicated after consuming between two and twenty-four beers and several
glasses of tequila. He was asked to leave after he was accused of
“grabbing all the girls’ butts.”
Sanchez soon returned to the trailer with a gun. He held the four
remaining occupants of the trailer hostage while he attempted to find a
woman who had already left the party. After the four hostages convinced
Sanchez that they did not know where the woman was, he ordered one of the
hostages to remove all of the telephones in the trailer, took the phones,
and forced seventeen-year-old H.S. to leave with him.
Sanchez and H.S. walked for thirty minutes to a cornfield where
Sanchez forced H.S. to remove her clothes and then raped her. When she
complained that he was hurting her, Sanchez performed oral sex on her, and
then raped her several more times. The pair then walked three and one-half
miles to Sanchez’s house, hiding in ditches when cars passed. When they
reached the house, Sanchez took H.S. to the basement and again raped her.
Both Sanchez and H.S. then fell asleep.
Early that morning, the police arrived and found Sanchez asleep next
to H.S. with a loaded weapon near his right hand and his left hand around
H.S.’s neck. At trial, the trial court gave the following instruction over
Sanchez’s objection: “Voluntary intoxication is not a defense to the
charge of Rape and Confinement. You may not take voluntary intoxication
into consideration in determining whether the Defendant acted knowingly or
intentionally, as alleged in the information.” This instruction accurately
reflects Indiana law, effective July 1, 1997, as codified in Indiana Code
section 35-41-2-5. Pub. L. No. 210-1997, § 3, 1997 Ind. Acts 2938. A jury
convicted Sanchez of rape and criminal confinement and he was sentenced to
forty years imprisonment.
On appeal, Sanchez argues that it was error to give the voluntary
intoxication instruction because the Due Course of Law provision of the
Indiana Constitution and several other state constitutional provisions
establish his right to present a voluntary intoxication defense. The Court
of Appeals, after an extensive examination of the origin of Article I,
Section 12 and the history of intoxication as a defense, found that Sanchez
had provided no independent analysis supporting a due course of law claim
under the Indiana Constitution, and therefore evaluated this issue under
federal due process doctrine. Sanchez v. State, 732 N.E.2d 165, 173 (Ind.
Ct. App. 2000). The Court of Appeals found Montana v. Egelhoff, 518 U.S.
37 (1996), dispositive. The court concluded that there was no federal due
process violation because, in the terms of the plurality opinion in
Egelhoff, prohibiting evidence of intoxication did not offend “a principle
of justice so rooted in the traditions and conscience of our people so as
to be ranked fundamental.” Sanchez, 732 N.E.2d at 173.

I. Voluntary Intoxication as a Defense Under Indiana Law

The Court of Appeals opinion contains a more detailed account of the
history of voluntary intoxication as a defense to the mens rea element of
crimes. In summary, at the time of the debates surrounding the 1851
Constitution, drunkenness and intoxicating liquors were viewed quite
harshly. Proposals to the Constitution were made to prohibit licenses to
sell liquor and to prevent the State from benefiting from liquor sales. At
common law, intoxication was itself an offense, and the prevailing view was
that one crime was no defense to another.[1] By 1860, this Court,
consistent with other states, had come to the view that evidence of
intoxication might be allowed in certain homicide crimes. O’Herrin v.
State, 14 Ind. 420, 420 (1860). Thirty years later, this Court held that
evidence of intoxication was admissible to reduce a first-degree murder
conviction to second-degree. Aszman v. State, 123 Ind. 347, 353-59, 24
N.E. 123, 125-27 (1890). By 1901, the Court had extended the use of
intoxication evidence to all crimes requiring proof of specific intent.
Booher v. State, 156 Ind. 435, 448-49, 60 N.E. 156, 160 (1901). This
became the majority position in the United States. See Montana v.
Egelhoff, 518 U.S. 37, 46-47 (1996).
In 1980, the legislature added Indiana Code section 35-41-3-5(b),
which attempted to limit the use of voluntary intoxication as a defense to
crimes that required “with intent to” or “with intention to.” Four years
later, in Terry v. State, 465 N.E.2d 1085, 1088 (Ind. 1984), this Court
held that, “[a]ny factor which serves as a denial of the existence of mens
rea must be considered by a trier of fact before a guilty finding is
entered,” and concluded that the statute was unconstitutional.
In 1996, the United States Supreme Court held that a state could
prohibit a criminal defendant from offering evidence of voluntary
intoxication to negate the requisite mens rea without violating the Due
Process Clause of the Fourteenth Amendment. Egelhoff, 518 U.S. at 56.
Therefore, as we observed in Van Cleave v. State, 674 N.E.2d 1293, 1302
n.15 (Ind. 1996), the Terry doctrine is “no longer good law” insofar as it
is grounded in the federal constitutional guarantee of due process.
In 1997, in response to Egelhoff, the legislature enacted Indiana
Code section 35-41-2-5. This section provides: “Intoxication is not a
defense in a prosecution for an offense and may not be taken into
consideration in determining the existence of a mental state that is an
element of the offense . . . [with exceptions not relevant here].” If this
statute is consistent with the state constitution, the instruction in
Sanchez’s trial properly captured the law of Indiana governing a claim of
lack of intent by reason of voluntary intoxication. As explained below,
compatibility of the statute with the federal constitution was established
in Egelhoff, but the state constitutional issues have not been resolved by
this Court.

II. Article I, Section 12—Due Course of Law and “Substantive Due Process”

Sanchez first argues that Indiana’s Due Course of Law provision, when
read in conjunction with the other constitutional provisions, “protected
Sanchez’s ability to challenge the State’s proof of his intent by putting
on a defense of voluntary intoxication.” According to Sanchez, Indiana
Code section 35-41-2[2]-5 is unconstitutional because it violates Article
I, Section 12, in addition to several other constitutional provisions.
Although he does not analyze Section 12 independently of other
constitutional provisions, Sanchez phrases his argument in terms of due
course of law. His contention seems to be that the criminal protections in
the other sections of the Indiana Constitution create either a “protectable
interest” under the Due Course of Law provision or establish that the
voluntary intoxication defense is “firmly ingrained” and, therefore, cannot
be abolished by the legislature because of the Due Course of Law provision.
The State tersely responds that, “Clearly the [voluntary intoxication]
instruction does not violate the Indiana Constitution,” relying on the
proposition that due course of law claims are to be examined using the same
analysis as federal due process claims. We agree with the State’s
conclusion, but not with its reasoning.
No case from this Court other than Terry v. State, 465 N.E.2d 1085,
1088 (Ind. 1984), has considered the need for a voluntary intoxication
defense under either the federal or state constitution. Terry did not
state in so many words that a statutory abolition of the defense of
voluntary intoxication is prohibited by the Indiana Constitution. We
nevertheless have the proposition from Terry that the issue presented in
that case was whether elimination of voluntary intoxication as a defense
“is violative of the Constitution of the United States and the State of
Indiana.” Terry, 465 N.E.2d at 1087. The constitutional basis for Terry’s
conclusion that the voluntary intoxication statute is “void and without
effect” is not clear. Id. at 1088. Terry adopted the concurring opinion
in Sills v. State, 463 N.E.2d 228, 240 (Ind. 1984) (Givan, C.J.), overruled
on other grounds by Wright v. State, 658 N.E.2d 563, 569-70 (Ind. 1995),
which took the view that every crime necessarily has a mens rea
requirement. Sills did not make clear whether a specific constitutional
provision was thought to impose such a requirement, or, if so, what
provision of the federal or state constitution it was. In sum, although
Terry, via Sills, suggests that the Indiana Constitution forbids a
limitation on the voluntary intoxication defense, neither opinion indicates
what provision of the state constitution supports that conclusion. The
same is true of the concurrence in this case.
Sanchez points to the “due course of law” phrase as the source of his
Indiana constitutional claim. Questions arising under the Indiana
Constitution are to be resolved “by examining the language of the text in
the context of the history surrounding its drafting and ratification, the
purpose and structure of our constitution, and case law interpreting the
specific provisions.” Indiana Gaming Comm’n v. Moseley, 643 N.E.2d 296,
298 (Ind. 1994). And, the first line of inquiry in any constitutional case
is the text of the constitution itself. Ajabu v. State, 693 N.E.2d 921,
929 (Ind. 1998). Article I, Section 12 provides: “All courts shall be
open; and every person, for injury done to him in his person, property, or
reputation, shall have remedy by due course of law. Justice shall be
administered freely, and without purchase; completely, and without denial;
speedily, and without delay.” By the terms of Section 12, only the second
sentence of that section is relevant in the criminal context, and that
sentence gives no guidance on the need vel non for a defense based on lack
of mens rea for any reason, let alone for voluntary intoxication.
Other interpretative tools in addition to language analysis are also
of limited use here. There is no unique Indiana history surrounding the
adoption of this clause in 1816 or its redrafting in 1851, McIntosh v.
Melroe Co., 729 N.E.2d 972, 974 (Ind. 2000), but the interpretation
suggested by this language is supported by the history of the due course of
law doctrine and by the case law surrounding Article I, Section 12. Due
course of law provisions appear to stem from Sir Edward Coke’s commentary
on the Magna Carta.[3] Their basic thrust is that “courts will adhere to
the law, rather than whim or corruption, in dispensing justice to
litigants.” Jennifer Friesen, State Constitutional Law § 6-2(a) (2d ed.
1996). These provisions have been interpreted to be a response to the
abuses that were present in England at that time, including bribes to delay
or expedite the judicial system. Id. Twenty-one states share similar
provisions encompassing the idea that the “very essence of civil liberty
certainly consists in the right of every individual to claim the protection
of laws, whenever he receives an injury.” Id. at § 6.2(b) & App. 6
(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)).
So viewed, the Due Course of Law provision is applicable to civil
proceedings, but provides none of the criminal protections of its federal
counterpart. As we recently noted in Melroe, 729 N.E.2d at 976 & n.2, all
of the previous cases that have found any criminal protection in the first
sentence of Article I, Section 12 have done so based on “due process”
without any analysis of the independent meaning of the Due Course of Law
provision. Because the federal constitution required the results in those
cases, appending a state “due process” doctrine without explanation was
unnecessary, and, we think, incorrect as well. Rather, “[b]y its terms,
[the first sentence of Article I, Section 12] applies only in the civil
context.” Id. at 976.
The second sentence of Article I, Section 12 refers to “justice”
being administered “completely.” Article I, Section 1 embodies the
provision in the Declaration of Independence that guarantees a right to
“life, liberty, and the pursuit of happiness.” Neither of these, and no
other provision of the Indiana Constitution, can be claimed to be the
express limitation on governmental action found in the Fifth and Fourteenth
Amendments. Nevertheless, we are satisfied that Terry was correct in its
implicit assumption that fundamental fairness in judicial proceedings is
assumed and required by our state constitution. The common law has long
been a basic building block of Indiana law. See Ind. Code § 1-1-2-1 (1998)
(adopting language from 1 Ind. Rev. Stat. ch. 61, § 1 (1852)). As the
Court of Appeals noted, this Court has frequently referred to a “federal
and state” constitutional requirement of “due process.” Sanchez, 732
N.E.2d at 171-72. Although technically inaccurate, we think these
references reflect the common understanding that courts of this state are
constitutionally bound by the basic concepts of fairness that are
frequently identified with “due process” in the federal constitution.
We agree that, in general terms, this concept of fairness embraces the
opportunity to present evidence relevant to a defense, whether or not that
evidence is also supported by the terms of the Article I, Section 13 right
to compel attendance of witnesses. We thus have no quarrel with the
concurrence’s claim that the constitution of our state requires that a
defendant have the opportunity to present evidence on a mens rea element or
any other element or recognized defense. But we think the legislature has
redefined the mens rea element in Indiana to render irrelevant the evidence
that Sanchez and the concurrence would present.[4] For that reason,
although the state constitutional right in Article I, Section 12 and
federal due process are not necessarily identical, in this instance, we
reach the same conclusion under our state constitution as the United States
Supreme Court reached in Egelhoff under the Fourteenth Amendment.

III. Terry and Sills and the Debate over Strict Liability

We do not agree with Terry v. State, 465 N.E.2d 1085, 1088 (Ind.
1984), to the extent it suggested that the Indiana Constitution contains an
inherent bar to the elimination of voluntary intoxication as a means of
negating the mens rea element of a crime. And although we agree with the
concurrence that constitutional precedent should not be lightly
disregarded, we do not consider Terry and Sills v. State, 463 N.E.2d 228,
240 (Ind. 1984), overruled on other grounds by Wright v. State, 658 N.E.2d
563, 569-70 (Ind. 1995), to contain more than casual references to the
state constitution.
As already noted, there are limits on what the legislature may
criminalize, even in the absence of a specific constitutional bar. Because
there is no general due process clause in our state constitution, and no
specific provision addressing the issue, if there is a mens rea requirement
that the state constitution imposes on this or any other crime, it must
derive from this fairness concept. But courts must be careful to avoid
substituting their judgment for those of the more politically responsive
branches. Federal due process limitations on substantive provisions of
criminal law are largely a dead letter today, having yielded to procedural
(Brady[5]) and structural (Miranda[6], Batson[7]) reforms in the last half
century. Finding substantive criminal law constraints in our state
constitution is even harder where there is no specific provision such as
the Ex Post Facto clause. Federal substantive due process jurisprudence as
a means of judicial override of legislative policy is often criticized as
anchorless. In the Indiana Constitution, we have not even a due process
clause to hold our jurisprudential vessel steady against the shifting tides
of judicial inclinations. We also have the constitutional directive in
Article I, Section 1 that “all power is inherent in the people.” This too
suggests deference to legislation that does not run afoul of a specific
constitutional provision.
For all of the foregoing reasons, we think constitutional rights not
grounded in a specific constitutional provision should not be readily
discovered. Specifically, we do not agree with the Sills concurrence,
cited with approval in Terry, to the extent it takes the view that intent
is a constitutionally required element of every crime. To support that
view, the concurrence in Sills explains the case law supporting strict
criminal liability as in reality finding an “implied intent.” 463 N.E.2d
at 241. Smith v. California, 361 U.S. 147 (1959), is cited for the
proposition that every crime requires intent, even though that case
expressly stated that, “it is doubtless competent for the States to create
strict criminal liabilities by defining criminal offenses without any
element of scienter.” Id. at 150. To explain this apparent rejection of
the necessity of a mens rea element, the Sills concurrence contended that
some laws, e.g., food and drug regulatory statutes, require strict
liability to serve their purposes, and, therefore, it is “necessary” to
imply intent under some circumstances. 463 N.E.2d at 241. We assume the
reference is to cases such as United States v. Park, 421 U.S. 658, 672-73
(1975), and United States v. Dotterweich, 320 U.S. 277, 281 (1943),
upholding strict criminal liability under some circumstances. We think it
is more candid to acknowledge, as Smith holds, that some crimes do not have
a mens rea component, rather than to contend that intent is always
required, but may be implied if necessary. 361 U.S at 150.
We do agree that a crime requires some voluntary action, and perhaps
that is all Terry and Sills address. Sills cites an example that was
contended to illustrate the need for an intent requirement for every crime.
Although acknowledging that running a red light is an offense as to which
lack of intent is no defense, Sills cites it as a case where implied intent
is necessary. 463 N.E.2d at 241. To prove its point, Sills posed the
example of a motorist who is struck by a rock and rendered unconscious
while the car proceeds through the light. Id. The contention is that no
judge or jury should convict under those conditions. The conclusion is
generally correct, but we think this example does not establish that intent
is an element, but rather reflects the usual assumption that voluntary
action is a component of a crime. See Ind. Code § 35-41-2-1 (1998); cf.
McClain v. State, 678 N.E.2d 104, 107 (Ind. 1997).
To the extent some have suggested that statutes similar to this
eliminate the commonly understood requirement of voluntary actions
necessary for culpability,[8] we disagree. The statute provides that
voluntary intoxication “may not be taken into consideration in determining
the existence of a mental state that is an element of the offense.” Like
all statutes in derogation of the common law, it is to be strictly
construed. Durham v. U-Haul Int’l, 745 N.E.2d 755, 759 (Ind. 2001). We
think “an element of the offense” refers to each unique mental element set
forth in the statute defining the crime, and not to the general requirement
of voluntary action that underlies all crimes, but is typically not
articulated in the statutes except as it is found in the overriding
provision of Indiana Code section 35-41-2-1.[9] The Indiana intoxication
statute eliminates the requirement that the voluntarily intoxicated
defendant acted “knowingly” or “intentionally” as to those crimes that
include those elements.[10] But even if there may be an act rendered
involuntary by intoxication, itself a doubtful premise in most
circumstances, the legislature has decreed that the intoxication, if
voluntary, supplies the general requirement of a voluntary act. That is
sufficient to place the voluntarily intoxicated offender at risk for the
consequences of his actions, even if it is claimed that the capacity has
been obliterated to achieve the otherwise requisite mental state for a
specific crime.
The concurrence contends that the need for voluntary acts cannot be
supplied by voluntary intoxication. As we see it, the issues are: first,
what conduct the legislature has chosen to prohibit; and second, whether
there is any constitutional bar to criminalizing that conduct. It may be
unwise to impose strict liability for actions taken by voluntarily
intoxicated persons. But the issue before us is whether the legislature
has so provided, and, if so, whether it is unconstitutional. If the
statute so provides, and the constitution presents no barrier to that
legislation, evidence of voluntary intoxication may not be presented to
negate mens rea.
Providing that a voluntarily intoxicated person is responsible for his
or her actions to the same degree as a sober person does not criminalize
activity that is wholly innocent because of ignorance of an obscure law or
lack of knowledge of relevant facts. Rather, it substitutes an element of
voluntary intoxication to the point that a person can claim ignorance of
his own actions for the mens rea otherwise required as to the wrongful
conduct itself. In this respect, it is similar to felony murder, which
accepts the mens rea of the underlying felony as sufficient for murder.
Both involve attaching more serious penal consequences to an activity that
the legislature may view as reprehensible in itself if it produces greater
harm than it typically does. As such, neither presents the problem of
criminalizing activity that most would regard as wholly blameless,[11] or
even the issue of individual criminal responsibility for organizational
failures without proof of individual mens rea.[12]
Sanchez individually and alone inflicted this night of terror on his
victim. His conduct was plainly at the core of the circle of culpability.
The issue is whether the legislature may hold him criminally responsible
notwithstanding a claim of intoxication. We think the legislature had
conventional crimes—murder, battery, rape, and so forth—in mind when it
provided that voluntary intoxication does not negate the mens rea element.
So applied, that treatment of intoxication does not criminalize activity
that ordinary citizens would consider benign. Rather, it supplements the
“knowing” and “intentional” elements with a third condition. The statute
acts qualitatively the same as felony murder, and both are constitutional
forms of strict liability. If and when we are confronted with a claim that
intoxication was accompanied by an act wholly innocent if taken by a sober
person, we can consider the issues those facts raise.
Until 1997 a voluntarily intoxicated defendant in Indiana could claim
that his actions were neither “knowing” or “intentional.” Yet the pages of
the Northeast Reporter are full of cases reciting that the defendant’s
action in “executing a plan,” operating a motor vehicle, or otherwise
demonstrating physical capacity were enough to establish the requisite mens
rea as a matter of law. Assuming intoxication has both rendered a person
incapable of apprehending the consequences or wrongfulness of his acts and
still left him capable of performing them, we think the legislature may
constitutionally provide that the perpetrator whose ignorance is the
product of self-induced intoxication rather than moral blindness is equally
culpable. In this case, there can be no doubt from the extended sequence
of events that Sanchez acted voluntarily, however impaired he may have
been. The legislature has chosen to treat ignorance of the consequences of
one’s act induced by voluntary intoxication the same as simple ignorance of
the law. Even strong opponents of strict liability doctrine agree that it
may be appropriate for some crimes. Professor Hart’s work is usually cited
as one of the fountainheads of attacks on strict liability. See Henry M.
Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401
(1958). But he recognized that “any member of the community who does these
things without knowing they are criminal is blameworthy, as much for his
lack of knowledge as for his actual conduct.” Id. at 413.

IV. The Statute as a Redefinition of the Mens Rea Requirement

Because we conclude that a statute may properly impose criminal
liability for some actions without a mens rea element, the question becomes
whether the statute before us does that. We think Montana v. Egelhoff, 518
U.S. 37 (1996), is instructive on that point. Four Justices constituted
the plurality sustaining the Montana statute in Egelhoff on the ground that
a state may exclude relevant evidence if its exclusion does not offend
“some principle of justice so rooted in the traditions and conscience of
our people as to be ranked as fundamental.” Id. at 43 (quoting Patterson
v. New York, 432 U.S. 197, 201-02 (1977)). After examining the history of
voluntary intoxication in much more detail than is recounted here, the
Court then concluded that a voluntary intoxication defense is not a
fundamental right protected by federal due process.
Justices Ginsburg, Souter, and O’Connor, in individual concurrences or
dissents, agreed that a state could constitutionally define the mental
element of a crime to be satisfied by voluntary intoxication. Justice
Ginsburg thought that this was the proper view of the Montana statute and
concurred on that basis. Id. at 59-60. Justice Souter also thought the
statute seemed to do that, but felt constrained by the Montana Supreme
Court’s position that the statute prevented the introduction of relevant
evidence and therefore violated due process. Id. at 73-74. Justice
O’Connor agreed that a state could constitutionally define mens rea, but
read the statute to exclude relevant evidence, and, therefore, to deny
procedural due process. Id. at 71-73.
Unlike the Montana Supreme Court, we read the Indiana statute as
redefining the elements of crimes, and not as excluding relevant evidence.
As a matter of form, the statute does not speak in terms of admissible
evidence. It was added to the Indiana Code as a new section for Chapter 35-
41-2, which is entitled “Basis of Criminal Liability,” itself a part of
Article 35-41, entitled “Substantive Criminal Provisions.” This reading is
reinforced by our knowledge that the Indiana statute was adopted after
Egelhoff, and with the benefit of its analysis and the knowledge that the
result in Egelhoff turned on Justice Ginsburg’s reading of the Montana
statute. Justice Breyer, joined by Justice Stevens, pointed out that
reading the Montana statute as equivalent to a redefinition of the mental
elements of crimes has some potentially “anomalous results.” Id. at 79.
He asks why, if this were the intended result, would the legislation not
have done so explicitly. Id. at 80. We think Egelhoff itself suggests the
answer to that question for Indiana. The language of the Indiana statute
is essentially identical to the Montana version, which had already passed
federal constitutional muster in Egelhoff. That is a good enough reason
for the Indiana legislature to stick with the tried and true. Second, and
less important, the criminal laws of this state are filled with various
mens rea provisions. An attempt to redefine all in a single provision
would fit poorly with the codification effort to group statutes in
logically related categories, and amending these crimes piecemeal would be
a much more daunting drafting task. Because we view the voluntary
intoxication statute as defining the elements of crimes in this state, we
do not find it offensive to either the federal due process clause or any
notion of fundamental fairness embedded in our state constitution.
Because the statute does not “exclude relevant evidence,” it does not
necessarily proscribe evidence of the defendant’s use of alcohol or drugs.
Rather, as occurred in this case, this evidence may be admissible as
general background,[13] or as relevant to something other than lack of mens
rea, e.g., identity. Perhaps it may also be relevant to a claim of
accident under other circumstances. But none of these issues are raised
here. This is not to say, as the concurrence contends, that other rules of
evidence, specifically, Indiana Rule of Evidence 404(b), may not preclude
use of this evidence if the defense objects. To the contrary, Swanson v.
State, 666 N.E.2d 397, 398-99 (Ind. 1996), cited by the concurrence, holds
that Rule 404(b) may preclude evidence of other “bad acts.” We think this
holding is fully consistent with our ruling today. Here, evidence of
defendant’s intoxication was admitted and embraced by the defendant. If
such evidence is admitted, the instruction given by the trial court is
proper. Moreover, the trial court may properly exclude evidence of blood
alcohol content, as was done in this case, if it finds that it bears solely
on the degree of intoxication.
The concurrence purports to agree with Justice O’Connor’s concurrence
in Egelhoff. But as already noted, although Justice O’Connor readily
agreed with the plurality that a state could constitutionally redefine the
mens rea elements to elevate voluntary intoxication, she felt bound by the
Montana Supreme Court’s view of the Montana statute. Egelhoff, 518 U.S. at
71-73. Because we construe our statute as redefining the requisite mens
rea, we assume Justice O’Connor would agree that the Indiana statute is
constitutional under federal law.
In sum, we agree with the concurrence that the State is obligated to
prove all elements of a crime. And we agree that a defendant has a right
to present relevant evidence to negate an element of any charged offense.
But we disagree with the concurrence that the voluntary intoxication
statute denies this right. The statute redefines the requirement of mens
rea to include voluntary intoxication, in addition to the traditional
mental states, i.e., intentionally, knowingly, and recklessly. Thus,
evidence of voluntary intoxication does not negate the mens rea
requirement, as the concurrence contends. Rather, it satisfies this
element of the crime.

V. Article I, Section 13—Right to Present a Defense

Sanchez also contends that exclusion of evidence showing his
voluntary intoxication violates Article I, Section 13 of the Indiana
Constitution. That section provides: “In all criminal prosecutions, the
accused shall have the right . . . to be heard by himself and counsel . . .
.” He claims that his right to be heard provides him a right to present
his defenses. It is correct that the Indiana Constitution “places a unique
value upon the desire of an individual accused of a crime to speak out
personally in the courtroom and state what in his mind constitutes a
predicate for his innocence of the charges.” Campbell v. State, 622 N.E.2d
495, 498 (Ind. 1993), abrogated on other grounds by Richardson v. State,
717 N.E.2d 32, 49 n.36 (Ind. 1999). The United States Supreme Court has
similarly described the defendant’s federal constitutional right “to
present his own version of events in his words” as “fundamental.” Rock v.
Arkansas, 483 U.S. 44, 52 (1987).
But Article I, Section 13 does not require that any specific claim of
a defense be recognized by Indiana law. Rather, it gives defendants the
right to present evidence in support of those defenses that are recognized
by the law of the state. The language of the provision refers to the right
of a defendant to be heard by himself and counsel. It protects against
limitations on a defendant’s right to testify at trial and to be
represented by either himself or counsel. As this Court recently held in
Roach v. State, under the federal constitutional right to present a
defense, “the accused, as is required of the State, must comply with
established rules of procedure and evidence designed to assure both
fairness and reliability in the ascertainment of guilt and innocence.” 695
N.E.2d 934, 939 (Ind. 1998) (quoting Chambers v. Mississippi, 410 U.S. 284,
302 (1973)). One of the rules of evidence is the requirement of relevance.
Ind. Evidence Rule 401. If the substantive law renders the evidence
irrelevant—which is what the statute does to Sanchez’s claim of voluntary
intoxication—there is no right under Article I, Section 13 to present it.
We agree with the concurrence that a defendant has a right to present
evidence to negate any element of any crime. We disagree that the point is
relevant here because the statute, by definition with elements different
than the concurrence would like, renders the evidence irrelevant.
Accordingly, we hold that Indiana Code section 35-41-2-5 does not
violate Article I, Section 13 of the Indiana Constitution.
VI. Article I, Section 19—Jury to Determine Law and Facts
Article I, Section 19 reads, “In all criminal cases whatever, the
jury shall have the right to determine the law and the facts.” Sanchez
contends that Indiana Code section 35-41-2-5 violates his right to have the
jury determine the law and the facts pursuant to Article I, Section 19.
Specifically, he argues that the voluntary intoxication instruction binds
the jury to find intent where it may not have been proved, or to disregard
evidence that negates intent.
We do not find Sanchez’s claim persuasive. The voluntary intoxication
instruction does not unconstitutionally compel the jury to make a finding
of intent. In effect, it provides that the crime is committed if it is
done with the requisite mens rea or as a result of voluntary intoxication.
This statutory scheme does not violate either the federal constitution[14]
or the jury’s ability to determine “the law and the facts.”
VII. Article I, Section 23—Equal Privileges and Immunities
Sanchez finally contends that Indiana Code section 35-41-2-5 violates
Indiana’s Privileges and Immunities clause, Article I, Section 23. He
claims that the statute created a class of voluntarily intoxicated criminal
defendants who are not allowed to disprove their intent to commit the crime
and are held criminally responsible even if they did not act knowingly or
intentionally. This Court has enunciated a two-part test for determining
whether a statute granting unequal privileges or immunities to differing
classes of persons passes constitutional muster under Article I, Section
23: “First, the disparate treatment accorded by the legislation must be
reasonably related to inherent characteristics which distinguish the
unequally treated classes. Second, the preferential treatment must be
uniformly applicable and equally available to all persons similarly
situated.” Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994). In applying
this test, the judgment of the legislature is entitled to “substantial
deference.” Id.
The first inquiry under Article I, Section 23 is whether the statute
is reasonably related to the inherent characteristics that define the
classes. This statute classifies persons into three groups: (1) those not
intoxicated, (2) those voluntarily intoxicated, and (3) those involuntarily
intoxicated. As for the second of these, Indiana Code section 35-41-2-5
reflects the legislative determination that defendants who are voluntarily
intoxicated are responsible for their resulting actions, but recognizes
that individuals who become intoxicated through no fault of their own are
not to be held responsible for actions taken while intoxicated. This is a
permissible legislative judgment. This distinction between voluntarily and
involuntarily intoxicated defendants is rationally related to legislative
goals and is a permissible balancing of the competing interests involved.
The differentiation of the voluntarily intoxicated from those who lack mens
rea for reasons other than self-induced drunkenness is also rational. The
former voluntarily placed themselves in a mode to be harmful to others, and
the latter did not.
Section 23 also requires that the preferential treatment provided by
the legislation be uniformly applicable to all similarly situated persons.
On its face, the voluntary intoxication statute applies to everyone.
Sanchez is treated no differently from any other person who is voluntarily
intoxicated when he or she commits a crime. Indiana Code section 35-41-2-5
does not violate Article I, Section 23.

Conclusion

The judgment of the trial court is affirmed.

SHEPARD, C.J., and DICKSON, J., concur.
SULLIVAN, J., concurs in result with separate opinion in which RUCKER,
J., concurs.

Attorneys for Appellant

Susan Karen Carpenter
Public Defender of Indiana

Gregory L. Lewis
Deputy Public Defender
Indianapolis, IN

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Barbara Gasper Hines
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

GUADALUPE A. SANCHEZ,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).

)
) Supreme Court No.
) 92S03-0009-CR-518
)
) Court of Appeals No.
) 92A03-9908-CR-322
)
)
)

APPEAL FROM THE WHITLEY CIRCUIT COURT
The Honorable James R. Heuer, Judge
Cause No. 92C01-9807-CF-00124

ON PETITION TO TRANSFER

June 26, 2001

SULLIVAN, Justice, concurring in result.

This case is not about a defendant’s right to avoid culpability for
criminal acts on the grounds that he is drunk. Nor is this case about the
legislature’s ability to draft and redraft criminal statutes. What this
case is about is a defendant’s right to present evidence to a jury that an
element of a crime has not been satisfied.

I

Nearly seventeen years ago, this Court determined in Terry v. State
that a criminal defendant has a constitutional right to introduce evidence
of intoxication to negate an element of an offense charged by the State.
465 N.E.2d 1085, 1088 (Ind. 1984). Specifically, Terry held that “[a]ny
factor which serves as a denial of the existence of mens rea must be
considered by the trier of fact before a guilty finding is entered.
Historically, facts such as age, mental condition, mistake or intoxication
have been offered to negate the capacity to formulate intent.” Id. Terry
allowed a defendant to present relevant evidence to show that the State has
failed to carry its burden to establish beyond a reasonable doubt that the
mens rea requirement of a crime has been satisfied.[15] This is what
Justice DeBruler meant when he stated in a later case that “[w]henever the
State is required to prove a particular state of mind on the part of the
defendant, evidence of intoxication is permitted to negate the existence of
that element of the crime.” Fowler v. State, 526 N.E.2d 1181, 1182 (Ind.
1988). Cf. McClain v. State, 678 N.E.2d 104, 106 (Ind. 1997) (holding as a
matter of statutory law that “evidence of automatism can be presented to
show lack of criminal intent … .”), reh’g denied.

The majority opinion overrules Terry. I think this is wrong.

That Terry’s holding stems from the Indiana Constitution is beyond
question, despite the fact that the opinion does not cite a specific
provision. First, Terry stated that the statute at issue there was “void
and without effect” and “violative of the Constitution of the United States
and the State of Indiana.” 465 N.E.2d at 1087-88. See also id. at 1088 (“A
defendant in Indiana can offer a defense of intoxication to any
crime.”).[16] Moreover, Terry’s reliance on the Indiana Constitution is
further sharpened by its incorporation of Justice Givan’s concurring
opinion in Sills v. State, where he stated that a defendant could present
evidence of intoxication to negate an element of an offense “under our
constitution and under the firmly established principles of the mens rea
required in criminal law.” 463 N.E.2d 228, 242 (Ind. 1984) (emphasis
added), majority opinion overruled in part on other grounds in Wright v.
State, 658 N.E.2d 563, 570 (Ind.1995), reh’g denied. Terry’s
constitutional pedigree is bolstered by our treatment of it in the years
since 1984. Although the majority opinion asserts that “Terry did not
state in so many words that a statutory abolition of the defense of
voluntary intoxication is prohibited by the Indiana Constitution,” Majority
Opinion at 7, State v. Van Cleave recognized Terry’s roots in “the Indiana
and U.S. Constitutions.” 674 N.E.2d 1293, 1302 (Ind. 1996) (emphasis
added), reh’g granted on other grounds, 681 N.E.2d 181 (1997), cert.
denied, 522 U.S. 1119 (1998). Indeed, we have found the constitutional
principles expounded in Terry to be so fundamental that we gave its rule
retroactive application. See Pavey v. State, 498 N.E.2d 1195, 1196 (Ind.
1986) (applying Terry retroactively because its holding “corrected a flaw
which directly and persuasively affected the fact finding process and the
determination of a defendant’s guilt or innocence.”). We have as of yet
articulated no doubt about the constitutional source of the Terry rule.
See, e.g., Owens v. State, 659 N.E.2d 466, 472 (Ind. 1995), reh’g denied;
Fowler, 526 N.E.2d at 1182.

Exceedingly persuasive arguments must be set out for us to turn our
back on such established law. See New York, C. & St. L. R. Co. v.
Henderson, 237 Ind. 456, 465, 146 N.E.2d 531, 537 (1957) (“We are not
unmindful of the importance and the desirability of stable principles of
law upon which litigants may rely, but where a rule announced in an opinion
works an obvious injustice upon litigants and is not supported by any
authority that we can find, it should be eliminated from the body of
precedents of this jurisdiction.”), reh’g denied; Prudential Ins. Co. of
America v. Smith, 231 Ind. 403, 408, 108 N.E.2d 61, 63 (1952) (“This court
is reluctant to overrule its own precedents if there is any justification
in legal principles by which they can be sustained … .”). As Chief Justice
Emmert stated in State ex rel. Hale v. Marion County Municipal Court, Room
3:
Nor should this court casually overrule prior precedents if there is
to be stability in the law. … [This] is not a case where the reasons
for the rule have ceased to exist, or there never was any reason for
the rule in the first place, either of which may be good cause for
overruling a prior precedent. If this court is to overrule prior
precedents in order to force a result in a particular case, we will
administer justice by men and not by law, and have the law declared by
judges and not by courts.

234 Ind. 467, 484-85, 127 N.E.2d 897, 905 (1955) (Emmert, C.J.,
dissenting). Accord Durham v. U-Haul Int’l, 745 N.E.2d 755, 763 (Ind.
2001) (“We have no quarrel with the result reached by the Court of Appeals
as a matter of policy. If we were writing on a clean slate we would find
the Court of Appeals’ analysis persuasive.”).

Under these principles, we should review Terry only to see if
intervening circumstances have eroded its foundation to the extent that
there is no “justification in legal principles by which [it] can be
sustained.” Prudential, 231 Ind. at 408, 108 N.E.2d at 63. My review of
the justifications behind Terry indicates that its rule has several salient
features that are as strong today as in 1984.

The majority would hold that the voluntary intoxication defense
statute should be read as merely “defining the elements of crimes in this
state.” Majority Opinion at 19. This is because “a statute may properly
impose criminal liability for some actions without a mens rea” element. Id.
at 17. And because he reads Terry (and Sills) to suggest that a mens rea
element is constitutionally required, the majority says, it (they) are not
good law.

Even if a mens rea element is not constitutionally required as a
matter of substantive constitutional law, the rule that Terry set out –
which pertains solely to the presentation of evidence – has been vindicated
by the procedural aspects of this court’s and the United States Supreme
Court’s criminal law jurisprudence. See Louis D. Bilionis, Process, the
Constitution and Substantive Criminal Law, 96 Mich. L. Rev. 1269, 1272
(1998) (“[P]rocess considerations have been shaping the Supreme Court’s
jurisprudence at the intersection of the Constitution and substantive
criminal law for at least seventy-five years.”). Constitutional criminal
law is a process whereby each governmental actor plays an established role.
The legislative branch is responsible for defining crimes, while courts
must craft procedural rules that vindicate those legislative choices. Id.
at 1293, 1320-21.[17] I view Terry as one such “intersection of the
Constitution and substantive criminal law” that produced a procedural
right. Id. at 1272. Therefore, while the legislature is free to define
the elements of crimes, it was not free to override the rule of
constitutional criminal procedure that Terry pronounced.

Terry is not alone in this position. Several older Indiana cases
suggest that criminal defendants have a right to present evidence to rebut
the State’s case on a mens rea element. For example, we stated in Dedrick
v. State that “the Legislature has no power to declare that certain facts
shall be prima facie evidence of the ultimate fact of criminal intent,
where such facts, standing alone and without legislative enactment to aid
them, would not be sufficient to support a verdict.” 210 Ind. 259, 278, 2
N.E.2d 409, 418 (1936) (citing Powers v. State, 204 Ind. 472, 184 N.E. 549
(1933)). See also Jacobs v. State, 210 Ind. 107, 110, 1 N.E.2d 452, 453
(1936) (“Any instruction, whether or not it is based upon a legislative
enactment, which undertakes to tell the jury that certain evidence is
sufficient to establish the ultimate fact of criminal intent, or any other
ultimate fact, or to create a presumption of such an ultimate fact, invades
the constitutional province of the jury.”); Walter v. State, 208 Ind. 231,
237, 195 N.E. 268, 271 (1935) (holding that statute providing that “the
failure, suspension, or involuntary liquidation of the bank within thirty
days after the time of receiving the deposit, which is charged to have been
embezzled, shall be prima facie evidence of intent to defraud” violated
Article 1, § 19 of the Indiana Constitution). These cases stand for the
proposition that the legislature cannot set out the elements of a crime but
prevent a defendant from negating those elements through irrebuttable
presumptions of fact. This is similar to what occurred in Defendant’s
case, as the legislature defined rape to include an element of intent but
also set up a per se preclusion of the evidence that would negate that
element.

Indiana is not alone in adopting a position that a defendant has a
constitutional right to present evidence negating an element of mens rea.
Several courts from other jurisdictions have found a constitutional right
to present evidence to rebut the State’s proof of voluntary conduct:
To find otherwise would deprive a criminal defendant of the right to
defend against one of the essential elements of every criminal case.
In effect, then, such a finding would deprive the defendant of the
means to challenge an aspect of the prosecution’s case and remove the
burden of proof on that element in contravention of constitutional and
statutory law.

State v. Phipps, 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994) (discussing
constitutional right to present evidence of diminished capacity). See also
Brown v. State, 931 P.2d 69, 77 (N.M. 1996).

In fact, four members of the United States Supreme Court believe that
the right to present evidence negating the element of intent is ingrained
in the federal constitution. See Montana v. Egelhoff, 518 U.S. 37, 61
(1996) (O’Connor, J., dissenting). Justice O’Connor based much of her
dissent on what she deemed to be a “simple principle”: “Due process demands
that a criminal defendant be afforded a fair opportunity to defend against
the State’s accusations. Meaningful adversarial testing of the State’s
case requires that the defendant not be prevented from raising an effective
defense, which must include the right to present relevant, probative
evidence.” Id. at 63.[18] Four other justices in Egelhoff determined that
the ability to present such exculpatory evidence was not a “fundamental
principle of justice,” id. at 43 (opinion of Scalia, J.) and a fifth voted
on other grounds to uphold the conviction. Id. at 56 (opinion of Ginsburg,
J.). But the fact that Justice O’Connor’s opinion also had four votes
demonstrates that the thinking behind Terry has not faded so much that it
is “a case where the reasons for the rule have ceased to exist, or there
never was any reason for the rule in the first place.” Hale, 127 N.E.2d at
905.

Finally, I note that Terry does not work the kind of “obvious
injustice” against the State that would require its abandonment.
Henderson, 237 Ind. at 465, 146 N.E.2d at 537. Terry simply affords
defendants the chance to present relevant evidence.[19] It does not
guarantee an acquittal, and we have repeated Terry’s admonition that:
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.

465 N.E.2d at 1088 (emphasis added). I agree that there are an extremely
limited number of cases–as I will discuss in a moment, I do not think this
is one of them–where a defendant can meet the Terry standard. But it is a
criminal defendant’s constitutional right to try.[20]
Moreover, while Terry produces little unfairness to the State, the
majority opinion produces great unfairness to defendants. The legislature
has defined numerous crimes to include an element of intentional conduct.
See, e.g., Ind. Code § 35-42-4-1 (1998). Under the statute upheld today, a
criminal defendant is denied the opportunity to present evidence that is
relevant to these legislatively enacted elements. The statute precludes
this evidence without any reference to its reliability and instead makes it
unavailable simply to “increase the likelihood of conviction of a certain
class of defendants who might otherwise be able to prove that they did not
satisfy a requisite element of the offense.” 518 U.S. at 61 (O’Connor, J.,
dissenting).[21] And, of course, the majority’s opinion gives the
legislature carte blanch to eliminate a defendant’s right to present
evidence in other circumstances on the theory that it is merely “defining
elements.” This is perhaps the most disturbing aspect of today’s holding.

I agree with Justice O’Connor’s statement that: “A state legislature
certainly has the authority to identify the elements of the offenses it
wishes to punish, but once its laws are written, a defendant has the right
to insist that the State prove beyond a reasonable doubt every element of
an offense … .” Id. at 64. This unfairness in overruling Terry is
exacerbated by the fact that the majority opinion allows the introduction
of evidence of intoxication as “general background.” Majority Opinion at
20. Under this approach, the State would be allowed to attack the
defendant with what amounts to evidence of bad character – i.e. that the
defendant drinks to excess. However, the defendant would not be allowed to
use the exact same evidence to rebut the charges against him. Cf. Swanson,
666 N.E.2d at 397 (disapproving the use of prior bad act evidence to show
the “res gestae” of the crime).

My discussion here does not purport to show that I would feel
compelled to adopt the rule enunciated in Terry if that case were before us
in the first instance. There are valid reasons underlying both the
majority’s opinion and Justice Scalia’s opinion in Egelhoff. However, the
arguments I have set forth demonstrate that the principles underlying Terry
remain sufficiently viable that we must adhere to this well-settled
precedent.

II

I concur in the result because I am convinced that the trial court’s
error was harmless beyond a reasonable doubt. The State proved beyond a
reasonable doubt that Defendant was not so intoxicated that he was
incapable of forming the intent required by the statute. “Evidence that
shows a defendant was not so intoxicated so that he could indeed form the
requisite mens rea includes such things as his ability ‘to devise a plan,
operate equipment, instruct the behavior of others, or carry out acts
requiring physical skill.’” Owens v. State, 659 N.E.2d 466, 473 (Ind.
1995) (quoting Terry, 465 N.E.2d at 1088). The evidence presented at trial
shows that Defendant returned to a party at a trailer, held the partygoers
at gunpoint and ordered them to handover all the phones inside the trailer.
He then forced the victim to walk to a secluded cornfield. After
repeatedly raping her, he led her to his house, which was more than three
miles away. Along the way, he forced the victim to hide from passing cars
and caught on when the victim attempted to trick him. Inside his home,
Defendant hid the victim in the basement and told others in the house not
to come downstairs. Defendant then raped the victim again. Police later
found Defendant and the victim asleep in a bed. Defendant had a gun loaded
and cocked near his right hand. This evidence is sufficient to show beyond
a reasonable doubt that Defendant was capable of forming the intent
required by the rape statute.

RUCKER, J., concurs

-----------------------
[1] This attitude towards intoxication was not limited to Indiana. E.g.,
United States v. Cornell, 25 F. Cas. 650, 657-58 (C.C.D. R.I. 1820) (No.
14,868) (“Drunkenness is a gross vice, and in the contemplation of some of
our laws is a crime . . . .”).
[2] Sanchez also challenges Indiana Code section 35-41-3-5 which provides
for the defense of involuntary intoxication. Because he does not present a
separate argument under this section, we do not address it.
[3] Lord Coke stated that, “[E]very Subject of this Realm, for injury done
to him in bonds, ferris, vel persona [goods, land, or person] . . . may
take his remedy by the court of Law . . . .” Lord Coke’s Second Institute
Explicating Article 40, 55-56 (4th ed. 1671).
[4] The very articles cited by the concurrence make the point that it is
for the legislature to define the crimes. As Professor Bilionis put it in
discussing the classic academic literature criticizing strict liability:
The problem with all of this, as Hart well knew, is that the
Constitution never defines “crime” as such and that few who have worn
the judicial robes have sensed in themselves an individual capacity to
trump forthright legislative decisions to attach the criminal stigma
to X or to any other act or omission that is not privileged by virtue
of a recognized constitutional right.
Louis D. Bilionis, Process, the Constitution, and Substantive Criminal Law,
96 Mich. L. Rev. 1269, 1277 (1998). Indeed, it is notable that none of the
articles on strict liability cited by the concurrence discuss Egelhoff
except to observe it as an example of the demise of substantive due process
limitations on criminal legislation. We think that is no accident. The
problems are quite distinct from both a jurisprudential and precedential
point of view.
[5] Brady v. Maryland, 373 U.S. 83 (1963).
[6] Miranda v. Arizona, 384 U.S. 436 (1966).
[7] Batson v. Kentucky, 476 U.S. 79 (1986).
[8] Ronald J. Allen, Foreward: Montana v. Egelhoff—Reflections on the
Limits of Legislative Imagination and Judicial Authority, 87 J. Crim. L. &
Criminology 633, 644 (1997).
[9] Indiana Code section 35-41-2-1 reads, “A person commits an offense only
if he voluntarily engages in conduct in violation of the statute defining
the offense.”
[10] Thus, although awareness of the likelihood of severe bodily injury is
ordinarily an element of murder, it is not necessary for the voluntarily
intoxicated killer to be convicted of murder.
[11] See Lambert v. California, 355 U.S. 225, 229-30 (1957), held it a
violation of federal due process to convict under a Los Angeles ordinance
prohibiting failure to register as a convicted felon within five days after
residing in the city.
[12] See, e.g., Dotterweich, 320 U.S. at 280-81 (upholding strict liability
of corporate officers for violations by the organization without an
individual mens rea).
[13] See Elliott v. State, 630 N.E.2d 202, 204 (Ind. 1994); McFarland v.
State, 271 Ind. 105, 111, 390 N.E.2d 989, 993 (1979) (“Moreover, we must
recognize that a considerable leeway is allowed even on direct examination
for proof of facts which are not really offered as bearing on the dispute,
however defined, but merely as details which fill in the background of the
narrative and give it interest, color, and lifelikeness.”) (citations
omitted); Buise v. State, 258 Ind. 321, 325, 281 N.E.2d 93, 96 (1972); see
generally Fed. R. Evid. 401 advisory committee’s note; 1 McCormick on
Evidence § 185 (John W. Strong ed., 5th ed. 1999).
[14] See United States v. Park, 421 U.S. 658, 672-73 (1975).
[15] The majority suggests that Defendant engaged in culpable conduct
by consuming alcohol. See Majority Opinion at 15-16. However, the State
has a constitutional obligation to establish every element of a charged
offense, and that includes showing that Defendant engaged in his conduct
intentionally or knowingly when the offense contains such a mens rea
requirement. See, e.g., Ind. Code § 35-42-4-1 (1998) (stating that rape
occurs “when a person … knowingly or intentionally has sexual intercourse
with a member of the opposite sex” under certain defined circumstances).

[16] The United States Supreme Court overruled the federal component
of this holding in Montana v. Egelhoff, 518 U.S. 37 (1996).

[17] The drafters of the Indiana Constitution apparently subscribed to
this view. A proposed amendment to the resolution that became Article 1, §
15 provided that “[n]o person shall be held to answer to any criminal
charge except in such manner as shall be prescribed by law.” Id. at 735.
The fact that this amendment failed, see id. at 736, suggests that the
drafters did not grant the legislature an unfettered power to write rules
of criminal procedure. This reading is reinforced by the concept of
separation of power that the drafters embedded in Article 3, § 1.
[18] It is somewhat difficult to decipher whether Justice O’Connor
sees this right as substantive or procedural because she cites substantive
cases such as In Re Winship, 397 U.S. 358 (1970), as well as procedural
cases such as Chambers v. Mississippi, 410 U.S. 284 (1973). However, I see
her opinion as essentially melding both bodies of law. Cf. discussion
supra page 6. It grants a procedural right – the ability to present
evidence of intoxication – in order to serve substantive goals – the
requirement that the State prove its case on every element beyond a
reasonable doubt.

[19] The fact that the legislature retained the defense of involuntary
intoxication demonstrates that it considers evidence of intoxication
relevant to the issue of intent. See Ind. Code § 35-41-3-5 (1998). The
majority seemingly also would find evidence of intoxication to be relevant
and reliable, as it would allow it to be introduced as “general
background.” See discussion infra. This conclusion appears to contradict
Chief Justice Shepard’s opinion in Swanson v. State, 666 N.E.2d 397 (Ind.
1996), reh’g denied.

[20] This case is distinct from other situations where we have upheld
the exclusion of potentially exculpatory evidence. See, e.g., Hubbard v.
State, 742 N.E.2d 919, 924 (Ind. 2001) (upholding exclusion of polygraph
test results). See also Duff v. State, 508 N.E.2d 17, 21 (Ind. 1987)
(DeBruler, J., dissenting) (discussing “the right of the defendant to
present relevant evidence and to have a fair opportunity to cross-examine
opposing witnesses”), reh’g denied. In those cases, we upheld the
exclusion of relevant evidence based on some flaw in its evidentiary value,
such as its unreliability. Here, the defendant is prevented from
presenting exculpatory evidence not because of a failure in its evidentiary
value, but because of the State’s desire “to ensure that even a defendant
who lacked the required mental-state element – and is therefore not guilty
– is nevertheless convicted of the offense.” Egelhoff, 518 U.S. at 66
(O’Connor, J., dissenting). See also id. at 67 (“[The statute bars] the
defendant’s use of a category of relevant, exculpatory evidence for the
express purpose of improving the State’s likelihood of winning a conviction
… . The plurality’s observation that all evidentiary rules that exclude
exculpatory evidence reduce the State’s burden to prove its case is beside
the point. The purpose of the familiar rules is not to alleviate the
State’s burden, but rather to vindicate some other goal or value … .”)
(emphasis in original).

[21] The Egelhoff opinion is useful in construing Ind. Code § 35-41-2-
5 because the statute was drafted in 1997, apparently in response to
Egelhoff.