Cheshier v. State

While I fully concur with the majority as to Part Two, I write separately in order to address concerns with respect to the majority’s holding under Part One. In my view, the intoxication instruction is clearly erroneous but not fundamentally so. For this reason, I do not conclude that it is necessary to reverse and remand for a new trial.

The majority relies heavily upon Legue v. State (1997) Ind., 688 N.E.2d 408; Miller v. State (1989) Ind., 541 N.E.2d 260 and Terry v. State (1984) Ind., 465 N.E.2d 1085 stating that “[o]ur supreme court has repeatedly used the exact language Cheshier…