¶1concurring in result.
¶2I concur with the majority that the final sentence on the instruction on intoxication as a defense was error in that it stated, "The defendant has the burden of proving that the defendant reached this degree of intoxication." As pointed out by the majority, this is contrary to our holding in Powers v. State (1989), Ind. 540 N.E.2d 1225 that although a defendant has the responsibility of raising an affirmative defense such as intoxication, this does not relieve the State of its burden of proving the element of mens rea.
¶3However, the majority correctly cites Fowler v. State (1988), Ind., 526 N.E.2d 1181 and the Powers case and then proceeds to imply that Huffman v. State (1989), Ind., 543 N.E.2d 360, cert. denied, — U.S. —, 110 S.Ct. 3257, 111 L.Ed.2d 767 holds to the contrary. This is not true. Huffman does not address this subject either in the majority opinion or the dissenting opinion. There is nothing about the decision in the case at bar which would imply the necessity of overruling any portion of Huffman.
¶4In all other respects, I agree with the majority opinion.