                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                   State v. Eugene C. Baum (A-107-13) (073056)

Argued November 10, 2015 – Decided February 8, 2016

SOLOMON, J., writing for a unanimous Court.

         In this appeal arising from a prosecution for aggravated manslaughter and death by auto, the Court
considers the trial court’s jury instructions, and whether the instruction on mental disease or defect effectively
negated defendant’s diminished capacity defense by blending the law on self-induced intoxication and mental
disease or defect.

         While driving from his residence to his mother’s home on the night of April 20, 2006, defendant Eugene
Baum struck and killed two teenage girls who were walking in a bike lane of a major thoroughfare in Kinnelon. The
responding officers found two beverage containers in defendant’s car, one of which contained a liquid that was 7.7
percent ethyl alcohol (15 proof). Defendant could not maintain his balance, his speech was slurred, and he smelled
strongly of alcohol. He told the police that he thought he had hit a deer, but was not sure.

         At the time of the incident, defendant’s blood alcohol level was determined to be between .327 and .377,
four times the legal limit. Defendant had taken a prescribed anti-depressant the night before, and Librium that
morning to control his symptoms of alcohol withdrawal. Although he knew that Librium would intensify his
intoxication, defendant stated that he consumed more than two alcoholic beverages, but did not know how much he
actually consumed, before driving to his mother’s home. Defendant stated that he drank because he is an alcoholic,
and has struggled with alcoholism for approximately seven years.

         Defendant argued at trial that he lacked the mental capacity to act recklessly because of his intoxication,
which he claimed was involuntary due to his mental diseases or defects of alcoholism and depression. Defendant
presented expert testimony confirming his chronic alcoholism, and concluding that the Librium in his system
severely impaired his ability to think or reason and that his drinking was automatic behavior rather than the product
of conscious thought. The State’s expert testified that alcohol consumption is a conscious, goal-directed behavior.
At the charge conference, defense counsel argued that it would be improper for the court to characterize defendant’s
intoxication as self-induced because the net effect of that statement would be to negate diminished capacity.
Counsel requested that the court separately and distinctly outline for the jury the concepts of self-induced
intoxication and diminished capacity. The trial judge stated that he would give the self-induced intoxication charge
following the mental disease or defect instruction, and defense counsel did not object.

          The jury found defendant guilty of two counts of first-degree aggravated manslaughter and two counts of
second-degree death by auto. Defendant was sentenced to two consecutive twenty-year prison terms subject to
eighty-five percent parole ineligibility. The Appellate Division affirmed defendant’s conviction, but remanded for
resentencing based on a reevaluation of the aggravating factors relied on by the sentencing court. The panel found
that the court’s instruction regarding mental disease or defect properly incorporated the exculpatory significance of
defendant’s expert testimony on the relationship between defendant’s intoxication and mental disease. This Court
granted limited certification. 220 N.J. 37 (2014).

HELD: The jury instructions, taken as a whole, are neither ambiguous nor misleading because they did not blend,
and explicitly distinguished, the concepts of mental disease or defect and self-induced intoxication, in charges that
reflected an accurate statement of the law. The sequence of instructions given by the court, addressing the
diminished capacity defense followed by the self-induced intoxication instruction, did not negate the diminished
capacity defense.

1. Appropriate and proper charges are essential for a fair trial. The trial court must give a comprehensible

                                                           1
explanation of the questions that the jury must determine, including the law of the case applicable to the facts that
the jury may find. Erroneous instructions on material points are presumed to possess the capacity to unfairly
prejudice the defendant. Because defendant objected to the proposed diminished capacity instruction, the Court
applies a harmless error standard. The Court must therefore determine whether the charge as a whole sets forth
accurately and fairly the controlling principles of law, or whether it is misleading, and, if so, whether this error was
clearly capable of producing an unjust result. (pp. 12-14)

2. The Criminal Code allows evidence of a mental disease or defect to negate an essential mental element of the
crime, and is therefore relevant to the State’s burden in proving the offenses charged. A diminished capacity
defense requires evidence demonstrating: a) a mental disease or defect that interferes with cognitive ability
sufficient to prevent or interfere with the formation of the requisite intent or mens rea; and b) that the claimed
deficiency did affect defendant’s cognitive capacity to form the requisite mental state. Whether a condition
constitutes a mental disease or defect is a question for determination by the jury after the court finds that the
evidence of the condition in question is relevant and accepted in the psychiatric community so as to be reliable for
use in litigation. (pp. 14-16)

3. Evidence of intoxication may be used to disprove that a defendant acted purposely or knowingly. However,
voluntary or self-induced intoxication, defined in N.J.S.A. 2C:2-8(e)(2), is immaterial to recklessness as an element
of an offense. (pp. 16-17)

4. Defendant’s state of mind was at issue in light of the requirement that the State show recklessness on the charge
of aggravated manslaughter under N.J.S.A. 2C:11-4(a)(1), and knowing and voluntary conduct under the death by
auto charge. Defendant contended that he could not have had the requisite mental state because he was involuntarily
intoxicated due to the mental diseases or defects of alcoholism and depression. Defendant asserted that his
intoxication should have been considered as evidence of his mental diseases or defects to establish a diminished
capacity defense. The State argued that defendant’s intoxication and driving on the shoulder of the road was
evidence of defendant’s recklessness in causing the victims’ deaths. (pp. 18-19)

5. The Court finds no error in the jury charge. The trial court’s instruction on self-induced intoxication mirrored the
definition in N.J.S.A. 2C:2-8(e)(2), which includes the language regarding a “knowing” introduction of intoxicants
that defendant sought. The trial court further stated that defendant had offered evidence that his intoxication was not
self-induced and that his alleged use of the intoxicants was not voluntary; as a result, the court also provided the jury
with the definition of a voluntary act. The court’s diminished capacity charge was consistent with the Model Jury
Charge. The trial court’s caveat regarding self-induced intoxication, included in the diminished capacity defense
charge, did not improperly blend the law of self-induced intoxication with that of mental disease or defect. These
instructions, and the twice-stated distinction between the statutory definition of self-induced intoxication and
defendant’s denial of self-induced intoxication, were proper to allow the jury to determine the issues. (pp. 19-24)

6. The Court also rejects defendant’s claim that giving the self-induced intoxication instruction immediately after
the mental disease or defect instruction effectively negated his diminished capacity defense. By carefully
constructing the intoxication charge to accommodate defendant’s requests, the trial judge properly conveyed the
concept that if defendant’s intoxication was due to a mental disease or defect that deprived him of the ability to
knowingly introduce intoxicants into his body, this will negate a necessary element of the offenses. In light of the
content of the charge as a whole, the sequence of instructions was not clearly capable of producing an unjust result.
(pp. 24-26)

         The judgment of the Appellate Division is AFFIRMED.

         CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN and PATTERSON join in
JUSTICE SOLOMON’S opinion. JUSTICE FERNANDEZ-VINA and JUDGE CUFF (temporarily assigned)
did not participate.




                                                            2
                                       SUPREME COURT OF NEW JERSEY
                                        A-107 September Term 2013
                                                  073056

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

EUGENE C. BAUM (a/k/a EUGENE
C. BAUM, JR.),

    Defendant-Appellant.


         Argued November 10, 2015 – Decided February 8, 2016

         On certification to the Superior Court,
         Appellate Division.

         Brian F. Plunkett, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph E. Krakora, Public Defender,
         attorney).

         Jennifer E. Kmieciak, Deputy Attorney
         General, argued the cause for respondent
         (John J. Hoffman, Acting Attorney General of
         New Jersey, attorney).


    JUSTICE SOLOMON delivered the opinion of the Court.

    Defendant Eugene Baum, while driving from his residence to

his mother’s home, struck and killed two teenage girls walking

in the bike lane of a major roadway.   At the time of the

incident, defendant’s blood alcohol level was four times the

legal limit.   Defendant had taken a prescribed anti-depressant,




                                 1
Paxil, the night before, and Librium that morning to control his

symptoms of alcohol withdrawal.

     Defendant argued at trial that he lacked the mental

capacity to act recklessly due to his involuntary intoxication,

and that his intoxication was not voluntary because he suffered

from the mental diseases or defects of alcoholism and

depression.   The jury convicted defendant of two counts of

first-degree aggravated manslaughter and two counts of second-

degree death by auto.   The Appellate Division affirmed

defendant’s conviction but remanded for resentencing.     In

affirming the conviction, the Appellate Division rejected

defendant’s contention that the court’s instruction regarding

mental disease or defect negated defendant’s diminished capacity

defense.   We affirm the Appellate Division.

                                  I.

     We begin with a recitation of the procedural background and

pertinent facts.   On the night of April 20, 2006, at

approximately 8:05 p.m., defendant struck and killed two teenage

girls walking in the bike lane of Kinnelon Road,1 a major

thoroughfare in Kinnelon, in Morris County.    Witnesses reported

the accident.   Responding officers found two beverage containers



1 The bike lane is between the roadway and its shoulder, and a
guardrail separates the shoulder from adjacent property.

                                  2
in defendant’s car, one of which contained liquid that was 7.7

percent ethyl alcohol (15 proof), and reported that defendant

could not maintain his balance and smelled strongly of alcohol.

Defendant told police, “I think I hit a deer, but I don’t know.”

     Defendant was handcuffed, transported to police

headquarters, and advised of his Miranda2 rights.      At police

headquarters, defendant’s speech was slurred, his eyes were

bloodshot and swollen, he could not maintain his balance, and he

had difficulty holding the identification placard under his

chin.   As a result, police summoned members of the first-aid

squad to treat defendant rather than perform sobriety tests or

proceed with questioning.

     After defendant was cleared by the first-aid squad, he was

transported to Chilton Memorial Hospital where blood was drawn

by stipulation,3 revealing that defendant’s blood alcohol content

(BAC) was between .289 and .320.       Defendant’s BAC at the time of

the accident was determined to be between .327 and .377.       The

blood test also revealed traces of Librium, a drug used to

control the consequences of alcohol withdrawal, and which

exacerbates the effects of alcohol.


2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

3 Defendant does not challenge the constitutionality of the
drawing of his blood.


                                   3
     Approximately four hours after the accident, police again

advised defendant of his Miranda rights, and defendant consented

to speak with the police, signed a waiver form, and gave a

video-taped statement.   Defendant stated that he took Paxil the

night before the accident and Librium the morning of the

accident to control his “shakes.”   Even though defendant knew

Librium would intensify his intoxication, he consumed more than

two alcoholic beverages4 before driving approximately fifteen

miles from his home in Dover to his mother’s home in Kinnelon.

Defendant stated that he drank because he was an alcoholic, that

he had struggled with alcoholism for about seven years, and that

he was receiving therapy for his addiction.

     As a result of the fatal automobile accident involving

defendant, a Morris County Grand Jury returned an indictment

charging defendant with two counts of first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a), and two counts of second-

degree death by auto, N.J.S.A. 2C:11-5(b)(1).

     At trial, defendant presented the expert testimony and

reports of Dr. Frederick Rotgers and Dr. Charles Semel.     Dr.

Rotgers, a psychologist specializing in clinical, and cognitive

and behavioral psychology, testified that the alcohol and


4 Although defendant initially denied consuming more than two
alcoholic beverages, toward the end of the interview he admitted
that he had more than two drinks, and that he did not know how
many he actually consumed.
                                4
Librium in defendant’s system “severely impaired” defendant’s

ability to think or reason, and he analogized defendant’s

alcohol consumption to “chain smokers” who unconsciously light

cigarette after cigarette.   Dr. Rotgers opined that defendant

consumed alcohol without ever forming the conscious intent to do

so, and it was “very likely” defendant did not realize that he

was drinking because his alcohol consumption had become

“automatic behavior.”   On cross-examination, Dr. Rotgers

conceded that defendant had been able to stop drinking on two

prior occasions for six to eight weeks and had been able to hold

a job and maintain social relationships.

    Next, Dr. Semel, an expert in psychology, neurology, and

psychopharmacology, testified that he diagnosed defendant with

“chronic alcoholism” based on a clinical interview and

psychometric testing.   Dr. Semel further testified that

defendant was in an alcohol-induced “delirium” at the time of

the accident, and defendant’s drinking was “automatic behavior”

rather than the “product of conscious thought.”

    The State called Dr. Daniel Greenfield, an expert in

psychiatry, forensic psychiatry, and addiction medicine, who

explained that alcohol consumption is “conscious,” “goal

directed behavior.”

         [W]hen a person makes a decision to buy
         alcohol, to drink it at various periods of
         time in different states . . . of mind. And

                                 5
         when a person . . . carries alcohol in his .
         . . car, which I understand was the case here,
         these   are   all   purposeful   goal-directed
         behaviors that people engage in.       They’re
         making a conscious decision to drink or to do
         what’s necessary to be able to drink later on
         and to suggest, in my opinion, that an
         individual just simply does [it] . . .
         automatically . . . without even thinking
         about it just makes no sense to me at all.

    At the charge conference, defense counsel argued that, in

light of the testimony of Drs. Rotgers and Semel, it would be

improper for the court to characterize defendant’s intoxication

as “self-induced” because the “net effect” would be to “negate

diminished capacity.”   Defense counsel contended that “the

concepts of self-induced intoxication and diminished capacity

are of considerable importance in this case,” and argued that

“the concepts need to be outlined for the jury separately and

distinctly.”   The trial judge responded that he would give the

self-induced intoxication instruction following the mental

disease or defect instruction.   Defense counsel did not object.

    In summation, defense counsel emphasized that all of the

experts agreed defendant suffered from alcoholism and argued

that defendant’s intoxication was “a matter of automatic

behavior,” done “without conscious thought.”   Defense counsel

claimed “the State’s going to argue that [defendant] knew what

he was doing ever[y] step of the way,” but urged the jury to

reject Dr. Greenfield’s opinion that defendant’s drinking was


                                 6
“goal-directed behavior.”   Defense counsel reiterated the

defense experts’ opinions that, when defendant left his home “he

did not have any ability to appreciate the risks or to

appreciate his own condition; that is, [his] intoxication was

not self-induced.”   Counsel also urged the jury to “[p]lease

listen when the Judge tells you about diminished capacity.”

    Following summations, the trial judge instructed the jury

on the elements of aggravated manslaughter and death by auto.

While explaining the State’s burden to prove that defendant

acted recklessly, the judge informed the jury that “even if you

find that the defendant was unaware of a risk due to self-

induced intoxication, you may still find that the State has

proven recklessness beyond a reasonable doubt even though the

defendant was unaware of a risk of which he would have been

aware were he not intoxicated.”       Next, the judge defined “self-

induced intoxication” as “intoxication caused by substances

which the actor knowingly introduces into his body,” which the

actor knows or ought to know has “the tendency . . . to cause

intoxication.”   (Emphasis added).     Noting that “defendant has

offered evidence that his intoxication was not self-induced, and

that his alleged use of the intoxicants was not voluntary,” the

judge defined “voluntary act” as “the product of the effort or

determination of the actor.”



                                  7
         Our law considers an act to be voluntary, even
         if the bodily effort was the result of
         conscious decision or done as a matter of
         habit.

              Whether an act is voluntary is not
         determined by whether such bodily movements
         were done as a matter of choice or freewill.
         An act is involuntary only if it is not [sic]
         the result of bodily movement which is not the
         product of the effort or determination of the
         actor.
The judge apparently misspoke when he added the additional “not”

to the instruction; defense counsel did not object.     However,

despite the misstatement, the Appellate Division found, and we

agree, that read in context with the rest of the charge, the

“instruction incorporated the exculpatory significance of

defendant’s expert testimony focusing on the relationship

between defendant’s intoxication and mental disease.”

    The judge repeated the definitions of “self-induced

intoxication” and “voluntary act” as part of his death-by-auto

instruction and, explaining that defendant had produced evidence

that he “suffered from a mental disease or defect,” gave the

following instruction:

         In considering the State’s burden of proof
         which is to prove each element of the charged
         offenses beyond a reasonable doubt, you must
         consider and weigh all of the evidence of
         defendant’s mental state, including . . .
         evidence of mental disease or defect in
         determining whether or not the State has
         proven   beyond  a   reasonable  doubt   that
         [defendant] acted recklessly which is an
         element of aggravated manslaughter and which


                                8
         is an element of death by auto or vehicular
         homicide.

              In making this decision, you must give
         defendant the benefit of any reasonable doubt
         about whether his mental functioning was such
         as to render him incapable of acting with the
         required state of mind or about whether he did
         in fact act with the required state of mind.
         In other words, you must determine whether
         despite the evidence of mental disease or
         defect, the State has proven beyond a
         reasonable doubt that the defendant acted
         recklessly as I have defined that term for
         you.    If after considering all of the
         evidence, including the evidence of mental
         disease or defect or any other evidence or
         lack of evidence in the case, you have a
         reasonable doubt whether defendant’s mental
         functioning was such as to render him
         incapable of acting with the required state of
         mind, or if you have reasonable doubt whether
         he did in fact act with the required state of
         mind, then the defendant is not guilty of
         aggravated manslaughter and death by auto or
         vehicular homicide.

The judge followed with a caveat:

         However, if you find that defendant was unable
         to perceive a risk because it was due to self-
         induced intoxication through his own self-
         induced intoxication, you may not consider
         that inability to perceive a risk as being a
         result of a mental disease or defect, or that
         such inability to perceive a risk rendered him
         incapable of acting with a reckless state of
         mind.   You may only consider any evidence
         regarding the defendant’s mental state or
         defect in considering if the State has
         sustained its burden of proof regarding the
         defendant’s mental state.    That is separate
         and distinct from his inability to perceive a
         risk due to self-induced intoxication.

         [(Emphasis added).]


                                9
     At the conclusion of the jury charge, defense counsel

objected to the judge’s failure to include, as part of the

statutory definition of self-induced intoxication, the exception

for substances introduced pursuant to medical advice.    Counsel

argued that because defendant had received a prescription for

Librium, the jury should be permitted to consider the entire

statutory definition.   However, the trial judge rejected

defendant’s contention, stating, “[h]is medical advice was not

to take the alcohol with the Librium,” and that defendant did

not drink alcohol pursuant to medical advice.   Defense counsel

did not, at this time, suggest language for the judge to use in

the jury charge.5

     The jury found defendant guilty on all counts, and he was

sentenced to two consecutive twenty-year prison terms subject to

an eighty-five percent parole disqualifier pursuant to the No

Early Release Act, N.J.S.A. 2C:43-7.2.

     Defendant raised five issues on appeal, including that the

court’s instruction regarding mental disease or defect

effectively negated defendant’s diminished capacity defense.


5 At the February 16, 2010 Charge Conference, defense counsel
informed the court that because “the issue of whether
intoxication is self-induced or not, is such an important issue
in the case, I think you should read the charge that I developed
specifically and exclusively as to that point.” However,
defense counsel’s proposed charge is not part of the record, nor
has it been provided to this Court.


                                10
The Appellate Division rejected four of defendant’s arguments6

and remanded for re-sentencing.    The panel affirmed defendant’s

convictions,7 holding that “the judge advised the jury that

[defendant’s] drinking had to include a voluntary act for his

intoxication to be ‘self-induced.’”    The panel determined that

the instruction objected to by defendant “incorporated the

exculpatory significance of defendant’s expert testimony

focusing on the relationship between defendant’s intoxication

and mental disease.”   Thus, the panel concluded the instruction

did not warrant reversal.

     We granted defendant’s petition for certification limited

to the issue of whether the jury instruction on mental disease

or defect effectively negated defendant’s diminished capacity

defense.   220 N.J. 37 (2014).

                                 II.

     The relevant arguments of the parties are, briefly, as

follows.   Defendant claims that his defense was predicated upon


6 The first four claimed errors were that the trial court gave an
inadequate instruction regarding defendant’s statement to the
police; defendant’s statement to police should have been
suppressed; the defense of pathological intoxication should have
been allowed; and the sentence was excessive.

7 The Appellate Division remanded for resentencing, finding that
because defendant’s intoxication was the primary evidence
offered to establish defendant’s recklessness, the trial court
improperly considered defendant’s intoxication as a basis to
find aggravating factor one.
                                  11
expert testimony that his drinking was involuntary, and the

trial court directed the verdict by instructing the jury that

defendant’s intoxication was not self-induced unless it was not

the product of his own effort.    Defendant contends that the only

way to preserve his diminished capacity defense was to omit any

suggestion that he could be guilty regardless of whether his

drinking was voluntary or involuntary.    By giving the self-

induced intoxication instruction immediately after the

diminished capacity instruction, defendant argues that the court

precluded the jury’s consideration of diminished capacity where

defendant’s intoxication was the involuntary result of his

alcoholism and depression.

    The State emphasizes that the jury charge, taken as a

whole, was neither ambiguous nor misleading because the jury

instructions explicitly distinguished between the concepts of

mental disease or defect and self-induced intoxication.   The

State contends, therefore, the charge was “an accurate

recitation of the law.”

                                 III.

                                 A.

    Turning to the legal principles that govern our resolution

of the parties’ arguments, we note that “‘[a]ppropriate and

proper charges are essential for a fair trial.’”   State v.

Reddish, 181 N.J. 553, 613 (2004) (quoting State v. Green, 86

                                 12
N.J. 281, 287 (1981)).    The trial court must give “a

comprehensible explanation of the questions that the jury must

determine, including the law of the case applicable to the facts

that the jury may find.”    Green, supra, 86 N.J. at 287-88.

Thus, the court has an “independent duty . . . to ensure that

the jurors receive accurate instructions on the law as it

pertains to the facts and issues of each case, irrespective of

the particular language suggested by either party.”      Reddish,

supra, 181 N.J. at 613.     “Because proper jury instructions are

essential to a fair trial, ‘erroneous instructions on material

points are presumed to’ possess the capacity to unfairly

prejudice the defendant.”    State v. Bunch, 180 N.J. 534, 541-42

(2004) (quoting State v. Nelson, 173 N.J. at 417, 446 (2002));

see also State v. Jordan, 147 N.J. 409, 422 (1997) (finding

“[e]rroneous instructions on matters or issues that are material

to the jury’s deliberation are presumed to be reversible error

in criminal prosecutions”).

    In conducting our review, we will apply a harmless error

analysis because defendant objected at the charge conference to

the proposed diminished capacity instruction on the grounds that

“it gives the jury the impression that intoxication is the

mental disease or defect that’s the problem.”    See R. 2:10-2.

Under that standard, there must “be ‘some degree of possibility

that [the error] led to an unjust result.    The possibility must

                                  13
be real, one sufficient to raise a reasonable doubt as to

whether [it] led the jury to a verdict it otherwise might not

have reached.’”   State v. Lazo, 209 N.J. 9, 26 (2012) (quoting

State v. R.B., 183 N.J. 308, 330 (2005)).   “The test to be

applied . . . is whether the charge as a whole is misleading, or

sets forth accurately and fairly the controlling principles of

law.”   State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div.

1997) (quoting State v. Sette, 259 N.J. Super. 156, 190-91 (App.

Div.), certif. denied, 130 N.J. 597 (1992)), certif. denied, 153

N.J. 49 (1998).   “‘The key to finding harmless error in such

cases is the isolated nature of the transgression and the fact

that a correct definition of the law on the same charge is found

elsewhere in the court’s instructions.’”    Ibid. (quoting Sette,

supra, 259 N.J. Super. at 192).

     Deciding whether the charge as a whole is misleading

requires consideration of the defense of diminished capacity in

the context of a claim of involuntary intoxication.   Therefore,

we must ascertain whether the trial court’s jury charge blended

the concepts of self-induced intoxication and diminished

capacity, and if so, whether this was error clearly capable of

producing an unjust result.

                                  B.

     The Criminal Code authorizes a defendant to present

evidence of a mental disease or defect to “‘negate the presence
                                  14
of an essential mental element of the crime (as when, for

example, a learning-disabled person strikes another but is

unable to know that the blow could kill).’”    State v. Rivera,

205 N.J. 472, 487 (2011) (quoting State v. Delibero, 149 N.J.

90, 98 (1997)); accord N.J.S.A. 2C:4-2.   This defense “was

designed by the Legislature not as a justification or an excuse,

nor as a matter of diminished or partial responsibility, but as

a factor bearing on the presence or absence of an essential

element of the crime as designated by the Code.”   State v.

Breakiron, 108 N.J. 591, 608 (1987).   Thus, “[a] jury considers

evidence of diminished capacity in relation to the State’s

burden to prove the essential elements of the crime.”    Delibero,

supra, 149 N.J. at 98.

    A defendant may raise a diminished capacity defense if (1)

he or she “has presented evidence of a mental disease or defect

that interferes with cognitive ability sufficient to prevent or

interfere with the formation of the requisite intent or mens

rea[,]” and (2) “the record contains evidence that the claimed

deficiency did affect the defendant’s cognitive capacity to form

the mental state necessary for the commission of the crime.”

State v. Galloway, 133 N.J. 631, 647 (1993).   When such evidence

is presented, the trial court is required to give a diminished

capacity charge to the jury.   State v. Kotter, 271 N.J. Super.

214, 221 (App. Div.) (citing Galloway, supra, 133 N.J. at 647)

                                15
(additional citations omitted), certif. denied, 137 N.J. 313

(1994).    Because the Code does not define “mental disease or

defect,” we have determined that whether “a condition

constitutes a mental disease or defect is one to be made in each

case by the jury after the court has determined that the

evidence of the condition in question is relevant and

sufficiently accepted within the psychiatric community to be

found reliable for courtroom use.”    Galloway, supra, 133 N.J. at

643; accord N.J.R.E. 702.

    Although the Code provides that a defendant has the initial

burden to introduce evidence of a mental disease or defect

tending to show that he or she was incapable of forming the

requisite intent, N.J.S.A. 2C:4-2, “the statute does not shift

the burden of proof to the defendant to disprove an essential

element of the case.”    State v. Moore, 122 N.J. 420, 431 (1991).

Accordingly, the burden of proof remains on the State to

establish the mens rea of the offense.    Ibid.; Delibero, supra,

149 N.J. at 98.

                                 C.

    Turning to intoxication and its relevance to a diminished

capacity defense, “intoxication” is defined by the Code as “a

disturbance of mental or physical capacities resulting from the

introduction of substances into the body.”    N.J.S.A. 2C:2-

8(e)(1).   “Self-induced intoxication” is defined as

                                 16
“intoxication caused by substances which the actor knowingly

introduces into his body, the tendency of which to cause

intoxication he knows or ought to know, unless he introduces

them pursuant to medical advice or under such circumstances as

would afford a defense to a charge of crime.”   N.J.S.A. 2C:2-

8(e)(2) (emphasis added).

    “Evidence of intoxication may be introduced to disprove

that a defendant acted ‘purposely’ or ‘knowingly.’”   State v.

Juinta, 224 N.J. Super. 711, 722 (App. Div.) (citing State v.

Warren, 104 N.J. 571, 575-76 (1986)), certif. denied, 113 N.J.

339 (1988).   However, “[w]hen recklessness establishes an

element of the offense, if the actor, due to self-induced

intoxication, is unaware of a risk of which he would have been

aware had he been sober, such unawareness is immaterial.”

N.J.S.A. 2C:2-8(b); see also Juinta, supra, 224 N.J. Super. at

722; Warren, supra, 104 N.J. at 575-76.

    Consequently, a defendant claiming to have been voluntarily

intoxicated at the time of the commission of a crime for which

the requisite mental state is recklessness, such as aggravated

manslaughter or death by auto, may nonetheless be found guilty.

Warren, supra, 104 N.J. at 576-77; see also State v. Bey, 112

N.J. 123, 144-45 (1988), cert. denied, 513 U.S. 1164, 115 S. Ct.

1131, 130 L. Ed. 2d 1093 (1995).

                                IV.

                                17
                                 A.

     Here, defendant’s recklessness was at issue because he was

charged with aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1),

requiring the State to prove defendant “recklessly cause[d]

death under circumstances manifesting extreme indifference to

human life.”   As the Appellate Division noted, the “primary

evidence of recklessness” offered by the State “was defendant’s

intoxication and the fact that he was driving on the road’s

shoulder.”

     Defendant does not dispute that N.J.S.A. 2C:2-8(b)

precludes the admission of evidence of self-induced intoxication

to disprove recklessness.   Further, defendant does not contend

that intoxication, by itself, rises to the level of a mental

disease or defect sufficient to establish a diminished capacity

defense in this case.   N.J.S.A. 2C:2-8(c).   Rather, defendant

relies on N.J.S.A. 2C:4-2’s provision for the admissibility of

evidence of a mental disease or defect “whenever it is relevant

to prove that the defendant did not have a state of mind which

is an element of the offense.”   Defendant contends that self-

induced intoxication under N.J.S.A. 2C:2-8(b) is a “distinctly

different” concept from intoxication resulting from a “mental

disease or defect” under N.J.S.A. 2C:4-2,8 and he could not have


8 Indeed, at the charge conference, defense counsel objected to
the proposed diminished capacity instruction on the grounds that
                                 18
had the requisite mental state, recklessness, because he was

intoxicated involuntarily due to the mental diseases or defects

of alcoholism and depression.

    In other words, defendant claims that his mental diseases

or defects negated the voluntariness of his intoxication, not

that his intoxication deprived him of the ability to form the

requisite intent.   Hence, defendant contends his intoxication

should have been considered as evidence of his mental diseases

or defects.   Relying on his experts’ testimony that his

intoxication was the unconscious product of alcoholism and

depression, defendant argues the mental disease or defect

instruction should have specified alcoholism and depression to

avoid confusion, and that the self-induced intoxication

instruction immediately following the mental disease or defect

instruction nullified his diminished capacity defense.

                                B.

    In addressing each component of the jury charge and the

sequencing of the charge as a whole, we first note that after

instructing the jury on the elements of manslaughter, the trial

court gave the following instruction on “self-induced

intoxication”:

              In determining whether the State has
         proven  beyond  a   reasonable doubt that

“it gives the jury the impression that intoxication is the
mental disease or defect that’s the problem.”
                                19
          defendant   acted   recklessly,   defendant’s
          unawareness of a risk due to self-induced
          intoxication is immaterial. In other words,
          even if you find that the defendant was
          unaware of a risk due to self-induced
          intoxication, you may still find that the
          State has proven recklessness beyond a
          reasonable doubt even though defendant was
          unaware of the risk of which he would have
          been aware were he not intoxicated.

               Self-induced      intoxication      means
          intoxication caused by substances which the
          actor knowingly introduces into his body. The
          tendency of which -- the tendency of which to
          cause intoxication he knows or ought to know.

          [(Emphasis added).]

This instruction is a recitation of N.J.S.A. 2C:2-8(e)(2),

“self-induced intoxication.”    Moreover, the definition uses

language argued for by defendant -- that he did not “knowingly”

introduce intoxicants into his body.

    Then, noting “defendant has offered evidence that his

intoxication was not self-induced, and that his alleged use of

the intoxicants was not voluntary,” the court defined “voluntary

act” as “the product of the effort or determination of the

actor.”   (Emphasis added).

          Our law considers an act to be voluntary, even
          if the bodily effort was the result of
          conscious decision or done as a matter of
          habit.

               Whether an act is voluntary is not
          determined by whether such bodily movements
          were done as a matter of choice or freewill.
          An act is involuntary only if it is not [sic]
          the result of bodily movement which is not the

                                 20
          product of the effort or determination of the
          actor.

          [(Emphasis added).]

    Defendant argues that the trial court’s instruction was

misleading and capable of directing the jury to find that his

intoxication was voluntary, because it explained “voluntary act”

without defining an act done “knowingly.”    We are not persuaded.

The trial court’s definition of “self-induced” intoxication

mirrors the statutory definition under N.J.S.A. 2C:2-8(e)(2),

emphasizing that “intoxication is caused by substances which the

actor knowingly introduces into his body, the tendency of which

to cause intoxication he knows or ought to know.”   (Emphasis

added).   Moreover, the trial court was careful to note that

“defendant has offered evidence that his intoxication was not

self-induced, and that his alleged use of the intoxicants was

not voluntary.”   (Emphasis added).

    Furthermore, as part of its death-by-auto charge, the trial

court repeated the same definitions of “self-induced

intoxication” and “voluntary act,” stressing both the

“knowingly” standard, and that defendant was arguing his

intoxication was not self-induced.    We conclude that after twice

hearing the distinction between the statutory definition of

“self-induced intoxication” and defendant’s contention that his

intoxication was not self-induced, the jury was capable of


                                21
discerning the difference between “knowingly” and “voluntarily.”

See State v. Ross, 218 N.J. 130, 152 (2014) (noting long-held

presumption that jury follows court’s instructions).

    In addition, defendant’s experts testified that defendant

had mental deficiencies that were capable of and, in fact, did

deprive him of the ability to form the requisite intent.

Acknowledging that contention, the trial court next gave the

following model charge on diminished capacity   to the jury:

              Now in relation to the aggravated
         manslaughter charges and the death by auto or
         vehicular homicide charges, evidence alleging
         that the defendant suffered from a mental
         disease or defect has been produced.       In
         considering the State’s burden of proof which
         is to prove each element of the charged
         offenses beyond a reasonable doubt, you must
         consider and weigh all of the evidence of
         defendant’s mental state, including . . .
         evidence of mental disease or defect in
         determining whether or not the State has
         proven   beyond  a   reasonable  doubt   that
         [defendant] acted recklessly which is an
         element of aggravated manslaughter and which
         is an element of death by auto or vehicular
         homicide.

See Galloway, supra, 133 N.J. at 647; Kotter, supra, 271 N.J.

Super. at 221.

    The Model Jury Charge on this point, “Evidence of Mental

Disease or Defect,” states that the jury should be instructed,

in relevant part, as follows:

         In considering the State’s burden of proof,
         which is to prove every element of the charged
         offense(s) beyond a reasonable doubt, you must

                                22
         consider and weigh all the evidence of
         defendant’s mental state, including that
         offered as evidence of mental disease or
         defect [OR insanity] [OR: [Insert Specific
         Mental Disease or Defect Alleged]], in
         determining whether or not the State has
         proven beyond a reasonable doubt[.]

         [Model Jury Charge (Criminal), “Evidence of
         Mental Disease or Defect (N.J.S.A. 2C:4-2)”
         (June 5, 2006).]

A comparison of the trial court’s charge with the Model Charge

demonstrates that the court adhered to the letter and spirit of

the model charge.   It is also important to note that the Model

Charge utilizes “OR” to indicate that a trial court may name the

mental diseases or defects alleged to be affecting a defendant,

but is not required to do so.   We find no abuse of discretion in

not doing so here, in light of the instructions on voluntary

intoxication and mental diseases or defects given and in light

of defendant’s failure to object to this aspect of the charge.

    The trial court then provided a caveat immediately following

the diminished capacity instruction:

         However, if you find that defendant was unable
         to perceive a risk because it was due to self-
         induced intoxication through his own self-
         induced intoxication, you may not consider
         that inability to perceive a risk as being a
         result of a mental disease or defect, or that
         such inability to perceive a risk rendered him
         incapable of acting with a reckless state of
         mind.   You may only consider any evidence
         regarding the defendant’s mental state or
         defect in considering if the State has
         sustained its burden of proof regarding the
         defendant’s mental state.    That is separate

                                23
         and distinct from his inability to perceive a
         risk due to self-induced intoxication.

         [(Emphasis added).]

Defendant alleges that by including this “addendum,” which

“blended the law of self-induced intoxication with that of

mental disease or defect,” the result was a misleading and

confusing charge.   Again, we disagree.   To eliminate any

confusion related to the interplay of “mental disease” and

“self-induced” intoxication, the trial court informed the jury

that “evidence regarding the defendant’s mental state or defect

. . . is separate and distinct from his inability to perceive a

risk due to self-induced intoxication.”

    We accept that the jury was asked to differentiate between

self-induced intoxication and a mental disease or defect.

However, we find that the trial court’s instructions preserved

defendant’s argument that his intoxication was not self-induced

while respecting the Legislature’s intent to preclude evidence

of self-induced intoxication to rebut a charge of recklessness.

    Defendant also argues that the placement of the “self-

induced intoxication” instruction immediately after the mental

disease or defect instruction effectively negated his diminished

capacity defense.   Indeed, the trial court, faced with

defendant’s claim that his intoxication was not self-induced,

could have, after the instruction on mental disease or defect,


                                24
emphasized that “defendant has offered evidence that his

intoxication was not self-induced, and that his alleged use of

the intoxicants was not voluntary.”    However, the trial court

reminded the jury of the intoxication defense after each and

every offense charged and briefly explained its elements of

proof along with the defense of involuntary intoxication.      A

jury should be advised that if defendant’s intoxication was due

to a mental disease or defect that deprived him of the ability

to knowingly introduce intoxicants into his body, the State has

not proven a necessary element of the crime.    The trial judge

sufficiently conveyed this principle by carefully constructing

the intoxication charge to accommodate defendant, who did not

object at trial or present a suggested order for the charges

given.

    A judge need not use the precise words or the precise

sequence demanded by one party or the other.    Cf. State v.

Jordan, 147 N.J. 409, 422 (1997) (“No party is entitled to have

the jury charged in his or her own words; all that is necessary

is that the charge as a whole be accurate.”).   It is the sole

duty of the court to deliver “accurate instructions on the law

as it pertains to the facts and issues” of the case at hand.

Reddish, supra, 181 N.J. at 613.    We conclude that the sequence

of instructions here was not clearly capable of producing an



                               25
unjust result in light of the content of the charge as a whole.

Therefore, we find there was no error here.

    Accordingly, we hold that the jury instructions, taken as a

whole, are neither ambiguous nor misleading because the jury

charge did not blend the concepts of self-induced intoxication

and diminished capacity, and the charge explicitly distinguished

between the notions of mental disease or defect and self-induced

intoxication -- reflecting an accurate recitation of the law.

Green, supra, 181 N.J. at 287.

                                  V.

    For the reasons outlined above, the judgment of the

Appellate Division is affirmed.




     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN and
PATTERSON join in JUSTICE SOLOMON’S opinion. JUSTICE FERNANDEZ-
VINA and JUDGE CUFF (temporarily assigned) did not participate.




                                  26
                  SUPREME COURT OF NEW JERSEY

NO.       A-107                                  SEPTEMBER TERM 2013

ON CERTIFICATION TO             Appellate Division, Superior Court



STATE OF NEW JERSEY,

      Plaintiff-Respondent,

              v.

EUGENE C. BAUM (a/k/a EUGENE C. BAUM, JR.),

      Defendant-Appellant.




DECIDED                February 8, 2016
                  Chief Justice Rabner                     PRESIDING
OPINION BY            Justice Solomon
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


 CHECKLIST                               AFFIRM
 CHIEF JUSTICE RABNER                       X
 JUSTICE LaVECCHIA                          X
 JUSTICE ALBIN                              X
 JUSTICE PATTERSON                          X
 JUSTICE FERNANDEZ-VINA            -------------------
 JUSTICE SOLOMON                            X
 JUDGE CUFF (t/a)                  --------------------
 TOTALS                                     5
