STATE of South Dakota, Plaintiff and Appellee, v. Jeremiah Badit LIAW, Defendant and Appellant.
No. 27484.
Supreme Court of South Dakota.
Argued March 22, 2016. Decided April 6, 2016.
2016 S.D. 31
v.
Jeremiah Badit LIAW, Defendant and Appellant.
No. 27484.
Supreme Court of South Dakota.
Argued March 22, 2016.
Decided April 6, 2016.
Beau J. Blouin, Minnehaha County, Public Defenders Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
KERN, Justice.
[¶ 1.] Jeremiah Liaw was convicted by a jury of second-degree kidnapping and criminal trespass. During the trial, Liaw requested instructions defining specific intent and voluntary intoxication. The trial court held that second-degree kidnapping was a general intent crime, and refused the instructions. Liaw was convicted of both offenses and appeals. We reverse and remand.
Background
[¶ 2.] Angela Calin is a resident of Sioux Falls. On October 24, 2014, she was at her home with friends Jean Wolff and Nikolai Nidalko, an elderly neighbor. Calin was inside the home while her friends were outside sitting on her back porch. Calin heard shouting and looked out the window to see Liaw standing in her driveway. He was not speaking English, but was uttering loud angry noises. Nidalko and Wolff were shouting at Liaw to leave the property, but Liaw refused and did not respond to their commands. Calin later testified that she feared Liaw would harm Nidalko, who was 75 years old and had knee problems. Calin walked outside and stood between the two men in an attempt to calm Liaw. At this point, Liaw grabbed her by the hand and would not let go. Calin, age 57, is much shorter than Liaw. Wolff was able to give Calin a cordless phone from inside the house and Calin dialed 911 while Liaw held onto her. Liaw was now holding her with both his hands—one gripping her arm and his other around her neck and shoulder. Calin was able to give her address and name to dispatch before Liaw drug her away from her house, and the connection on the cordless phone was lost.
[¶ 3.] Although terrified, Calin tried to calm Liaw down. Calin testified that Liaw would respond to her, but she did not understand him. After pulling her about a block, Liaw attempted to shove Calin into oncoming traffic. She was able to avoid being hit by shifting in the opposite direction. She observed Liaw cross the street and quickly walk down the block. She followed Liaw, and saw him enter a grocery store. After he left the store, she went inside and again called 911, relaying
[¶ 4.] Officer Christopher Jasso was the first to arrive at Calin’s house, where Wolff and Nidalko had remained. Wolff was frantic with worry about Calin and described the events to Officer Jasso. A few moments later, Officer Jasso noticed Liaw standing in a yard a few houses away. Officer Jasso approached Liaw and observed that his “balance was off and his speech was slurred.” Officer Jasso helped Liaw sit down on the curb so he could ask Liaw about Calin. The two had the following exchange:
Officer Jasso: What did you do with the woman buddy?
Liaw: Huh?
Officer Jasso: What did you do with the old lady that you were walking with?
Liaw: What lady?
Officer Jasso: The old lady?
Liaw: Did I walk with old lady (inaudible)?
Officer Jasso: Yeah you were over here.
Liaw: Huh, I’m done (repeated multiple times).
Officer Jasso: What do you mean you are done?
Liaw: Did I walk with old lady?
Officer Jasso: Yeah, you were over here?
Liaw: When.
Officer Jasso: A little bit ago.
Liaw: Did I?
Officer Jasso: Yes I am asking you.
Liaw: Somebody walking by themselves you know.
Officer Jasso: Ok were you walking with a little old lady wearing blue jeans?
Liaw: inaudible.
[¶ 5.] Officer Michelle Deschepper arrived and began speaking with Liaw. She testified that Liaw was highly intoxicated. Liaw was unable to provide his address or describe where he lived. He gave the officers a wallet, and told the officers it belonged to his uncle. Officer Deschepper gave Liaw a portable breath test, which registered .38. Officer Deschepper believed Liaw was so intoxicated that she would have to take him to the emergency room for medical clearance before taking him to a detoxification facility.
[¶ 6.] Liaw was ultimately arrested and charged with kidnapping in the first degree—terrorizing victim (
[¶ 7.] Liaw appeals the kidnapping conviction raising two issues:
2. Whether the trial court abused its discretion by denying Liaw’s proposed jury instructions.
Whether second-degree kidnapping is a specific intent crime.
[¶ 8.] Liaw presents a case of first impression. We have not had occasion to analyze the kidnapping statutes to determine if they require proof of general or specific intent. The trial court noted “the question is not as clear as I would like it,” and acknowledged that there was a split of authority in state courts on this question. The court concluded that second-degree kidnapping was a general intent crime. Determining whether a crime requires specific intent depends on the elements of the crime as set forth in the statute. This is an issue of statutory interpretation that we review de novo. State v. Schouten, 2005 S.D. 122, ¶ 9, 707 N.W.2d 820, 822.
[¶ 9.] Liaw argues that second-degree kidnapping is a specific intent crime.
[¶ 10.]
[¶ 11.] This Court has incorporated this statutory language when defining mens rea. “Specific intent crimes require that the offender have ‘a specific design to cause a certain result.’ General intent crimes only require that the offender ‘engage in conduct’ that is prohibited by the statute, ‘regardless of what the offender intends to accomplish.’” Id. ¶ 13, 707 N.W.2d at 824 (citation omitted). Specific intent requires some intent beyond the intent to do the physical act involved in the crime, whereas general intent requires only an intent to do the physical act. State v. Taecker, 2003 S.D. 43, ¶ 25, 661 N.W.2d 712, 718.
[¶ 13.] To further emphasize the distinction we compared this statute to
[¶ 14.]
[¶ 15.] This interpretation is bolstered by the Supreme Court’s holding in United States v. Bailey, 444 U.S. 394, 403, 100 S.Ct. 624, 631, 62 L.Ed.2d 575 (1980). In Bailey, the Court noted the movement towards the MPC’s new culpability levels distinguishing between crimes committed “purposely,” “knowingly,” and “recklessly”. Id. at 404, 100 S.Ct. at 631. The Court stated, “In a general sense, ‘purpose’ corresponds loosely with the common-law concept of specific intent, while ‘knowledge’ corresponds loosely with the concept of general intent.” Id. at 405, 100 S.Ct. at 632. We made the same distinction in State v. Rash, 294 N.W.2d 416, 417 (S.D.1980) (internal quotation marks omitted) (quoting People v. Lerma, 66 Mich.App. 566, 239 N.W.2d 424, 425 (1976)). The Vermont Supreme Court also reached the same result in State v. Jackowski, holding that the common
[¶ 16.] Other jurisdictions have explicitly considered whether kidnapping is a specific intent crime. The analysis necessarily turns on the language of each state’s respective statute. Mississippi, for example, determined that kidnapping is a general intent crime, but its statutory language is significantly different from South Dakota’s. See Milano v. State, 790 So.2d 179, 187 (Miss.2001). The majority of jurisdictions hold otherwise, analyzing kidnapping as a specific intent crime. See generally Owens v. State, 531 So.2d 2, 13 (Ala.Crim.App.1986) (holding that kidnapping requires proof of two intents, the intent to abduct and the intent to perform one of six different acts such as ransom, terrorize, etc.); People v. Dominguez, 39 Cal.4th 1141, 47 Cal.Rptr.3d 575, 140 P.3d 866, 877, n. 6 (2006) (noting that aggravated kidnapping is a specific intent crime); Scott v. State, 521 A.2d 235, 244 (Del.1987) (holding that kidnapping requires proof that the defendant acted with specific intent under Delaware’s kidnapping statute,
[¶ 17.] Similarly, we hold that
Whether the trial court abused its discretion by denying Liaw’s proposed jury instruction related to intoxication.
[¶ 18.] We review a trial court’s denial of a jury instruction for an abuse of discretion. State v. St. John, 2004 S.D. 15, ¶ 8, 675 N.W.2d 426, 427. “But a court has no discretion to give incorrect or misleading instructions, and to do so prejudicially constitutes reversible error.” Kadrmas, Lee & Jackson, Inc. v. Morris, 2010 S.D. 61, ¶ 5, 786 N.W.2d 381, 382, n. 1. “Under our standard of review, we construe jury instructions as a whole to learn if they provided a full and correct statement of the law.” State v. Frazier, 2001 S.D. 19, ¶ 35, 622 N.W.2d 246, 259. “An appellant must show not only that a particular instruction was erroneous, but also that it was prejudicial, meaning ‘the jury might and probably would have returned a different verdict if [the] instruction had been given.’” Id. (quoting State v. Walton, 1999 S.D. 80, ¶ 12, 600 N.W.2d 524, 528).
[¶ 20.] Liaw also argues that the trial court abused its discretion because it failed to properly instruct the jury that voluntary intoxication can negate specific intent. See State v. Primeaux, 328 N.W.2d 256, 259 (S.D.1982). We agree. In this case, the trial court did not provide the jury with a full and complete statement of the law when it denied Liaw’s instruction on how intoxication affects specific intent. Liaw’s requested instruction No. 2 would have correctly informed the jury that specific intent was an element of second-degree kidnapping and that Liaw could not be convicted absent proof beyond a reasonable doubt of the specific intent to cause bodily injury or terrorize the victim.3 While the trial court did give the first two paragraphs of Liaw’s requested instruction No. 3 on voluntary intoxication, it excluded all references to specific intent.4 The last two paragraphs would have correctly instructed the jury on how to consider evidence of intoxication in relationship to
[¶ 21.] Liaw must also show that he was prejudiced by the trial court’s errors if we are to reverse his conviction. An accused must “be afforded a meaningful opportunity to present a complete defense.” State v. Iron Necklace, 430 N.W.2d 66, 75 (S.D.1988) (citation omitted). “A defense of diminished capacity is relevant to a specific intent crime, but not to a general intent crime.” Schouten, 2005 S.D. 122, ¶ 18, 707 N.W.2d at 825 (citing United States v. Kimes, 246 F.3d 800, 806 (6th Cir.2001)).
[¶ 22.] The State contends that Liaw was not prejudiced because the jury instructions discussed the required elements of kidnapping, and because Liaw’s counsel emphasized Liaw’s state of mind during closing arguments. The State relies on this Court’s holding in State v. Klaudt, 2009 S.D. 71, ¶ 20, 772 N.W.2d 117, 123, in support of its position. But Klaudt is inapposite to this case. In Klaudt the defendant appealed his conviction for rape. Id. ¶ 1, 772 N.W.2d at 118. Klaudt requested a jury instruction at trial providing, “The heart of a forcible rape charge is lack of consent. Therefore, if the alleged victim consented to the charged sexual penetration, the Defendant cannot be convicted of the charge of Second-Degree Rape.” Id. ¶ 19, 772 N.W.2d at 123. This instruction was denied, but the trial court did instruct the jury “[i]f the alleged victim consented to the charged sexual penetration, the Defendant cannot be convicted of the charge of Second-Degree Rape.” Id. We held that the “principle embodied in the first sentence was substantially covered, even if implicitly, in the second sentence, which was given in its entirety in [the given instruction].” Id. ¶ 20.
[¶ 23.] Klaudt is distinguishable from the facts of this case as Liaw’s jury was not instructed regarding the necessary element of specific intent. In fact the trial court gave no instruction on intent—either general or specific intent. We upheld the conviction in Klaudt because the instruction, actually given correctly, informed the jury that consent was a defense and only excluded defendant’s conclusory statement about the offense. The premise of the two instructions was the same. Here, the trial court not only excluded the entire instruction dealing with specific intent, but eliminated all reference to specific intent from the voluntary intoxication instruction. The principle of specific intent was not “substantially covered” by the given instructions as was the case in Klaudt. The State’s argument that the given instructions were sufficient is not persuasive. The instruction given was taken almost verbatim from
Conclusion
[¶ 25.] Kidnapping in the second degree, in violation of
[¶ 26.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.