State v. Bigelow , 303 Neb. 729 ( 2019 )

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www.nebraska.gov/apps-courts-epub/
08/16/2019 12:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BIGELOW
Cite as 303 Neb. 729State of Nebraska, appellant, v.
Shannon D. Bigelow, appellee.
___ N.W.2d ___
Filed July 19, 2019. No. S-18-006.
1. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
2. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
3. Insanity: Proof. The insanity defense requires proof that (1) the defend­
ant had a mental disease or defect at the time of the crime and (2) the
defendant did not know or understand the nature and consequences of
his or her actions or that he or she did not know the difference between
right and wrong.
4. Jury Instructions. Jury instructions are not prejudicial if, when taken as
a whole, they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evidence.
Petition for further review from the Court of Appeals,
R iedmann, Bishop, and Welch, Judges, on appeal thereto from
the District Court for Lancaster County, K evin R. McM anaman,
Judge. Judgment of Court of Appeals affirmed.
Mark E. Rappl for appellant.
Douglas J. Peterson, Attorney General, Melissa R. Vincent,
and Derek T. Bral, Senior Certified Law Student, for appellee.
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STATE v. BIGELOW
Cite as 303 Neb. 729Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
After ingesting methamphetamine, Shannon D. Bigelow
was in a hospital emergency room, where hospital person-
nel administered medications which, instead of relaxing him
caused him to become agitated, whereupon he assaulted an
officer. We granted Bigelow’s petition for further review of the
decision of the Nebraska Court of Appeals which affirmed his
conviction in the district court for Lancaster County for third
degree assault on an officer. On further review, Bigelow raises
issues regarding jury instructions refused and given on the
defenses of insanity and intoxication.
We agree with the Court of Appeals that the district court did
not err when it refused Bigelow’s proposed insanity defense
instruction and instead gave an instruction regarding both vol-
untary and involuntary intoxication. We affirm.
STATEMENT OF FACTS
The charge against Bigelow arose from an incident which
occurred in July 2016 when he was admitted to a hospital after
he ingested methamphetamine and exhibited bizarre behav-
ior. Bigelow became agitated and restless at the hospital, so
nurses injected him with three medications—Haldol, Ativan,
and Benadryl—which were intended to relax him. However,
Bigelow became more agitated, left his room, and began pac-
ing around the emergency room. After personnel called for
security, an off-duty police officer working for hospital secu-
rity arrived and told Bigelow that he needed to leave the emer-
gency room. Bigelow punched the officer in the face, “took
him to the ground,” and punched the officer several more times
while reaching for the officer’s gun. He then fled the emer-
gency room, pursued by the security officer.
A sheriff’s deputy responding to an emergency dispatch
saw Bigelow running out the doors of the emergency room
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STATE v. BIGELOW
Cite as 303 Neb. 729followed by the security officer. The deputy pointed his Taser
at Bigelow and told him to stop and get on the ground.
Bigelow immediately stopped running and complied with the
deputy’s command to get on the ground. Bigelow also imme-
diately complied with subsequent orders to roll over and put
his hands behind his back. The deputy testified at trial that
Bigelow was “completely compliant,” that he did not resist and
was not aggressive but instead was “[t]he opposite,” and that
he was compliant with other police officers who arrived and
helped complete the capture.
Bigelow was arrested, and the State charged him with third
degree assault on an officer in violation of Neb. Rev. Stat.
§ 28-931 (Reissue 2016). The State later amended the informa-
tion to allege that Bigelow was a habitual criminal.
Prior to trial, Bigelow filed a notice of intent to rely on
an insanity defense. After a competency evaluation, the court
determined that Bigelow was competent to stand trial.
In his defense at trial, Bigelow called Dr. Klaus Hartmann
as a witness. Hartmann had conducted an evaluation in January
2017 to determine whether Bigelow was insane at the time
of the incident in July 2016. Although Hartmann noted that
at times prior to the incident, Bigelow had been diagnosed
with various mental disorders, including schizophrenia, the
general thrust of Hartmann’s testimony was that he attributed
Bigelow’s behavior in the emergency room to the effects of
the three drugs given to him at the hospital. Hartmann also
testified that the methamphetamine Bigelow had ingested prior
to being admitted to the hospital would have made him “more
energized,” but Hartmann disagreed with an evaluation by
another doctor who concluded that the assault was “precipi-
tated by the voluntary use of amphetamine.” When asked to
opine on whether Bigelow knew what he was doing when the
assault took place, Hartmann opined that “he was sufficiently
impaired by the effects of these medicines that he did not
know what he was doing.” When asked whether the effect
of the three drugs could be described as “some sort of either
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STATE v. BIGELOW
Cite as 303 Neb. 729a mental disease or defect or disorder,” Hartmann declined
to use one of those terms and instead described the effect as
“a temporary drug-induced impairment.” Hartmann had also
described the effect of the three drugs as being “almost like
[Bigelow] had been drinking alcohol excessively and he was
not in a position to control his actions and be in full possession
of his faculties.”
During his cross-examination by the State, Hartmann testi-
fied that it was “the three drugs [Bigelow] was given at the
hospital” and “[n]ot the methamphetamine” that had “caused
his problems” at the time of the assault. At the end of the
cross-examination, the State specifically asked Hartmann,
“And your opinion is not that he was suffering from the men-
tal disease to the extent that he did not know the difference
between right and wrong with respect to what he was doing, it
was the impairment due to the three drugs, correct?” Hartman
replied, “Yes.”
After Bigelow rested his case, the State moved the court
for an order that Bigelow would not be entitled to submit an
insanity defense to the jury. The State noted Hartman’s tes-
timony that it was not mental disease that caused Bigelow’s
behavior and that instead, he was impaired due to the drugs
he had been given. Bigelow argued in response that “the men-
tal disorder was essentially an involuntary intoxication . . .
caused by the three drugs.” The court found that Bigelow’s
evidence did not present a prima facie case for the insanity
defense and granted the State’s motion. In connection with
the ruling, the court commented that it thought Bigelow’s
evidence showed both voluntary and involuntary intoxication
but not the mental disease, defect, or disorder necessary for an
insanity defense. The court also stated its understanding that
insanity required a permanent “diagnosed mental condition,
not a temporary intoxication” caused by “externally applied
chemical” agents.
At the jury instruction conference, Bigelow objected to the
court’s draft instruction regarding the elements of the crime
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Cite as 303 Neb. 729charged; he instead proposed an instruction that incorporated
the insanity defense. The language of the proposed instruction
regarding the insanity defense followed NJI2d Crim. 7.0 and
set forth the elements of the defense as being that Bigelow
“had a mental disease, defect or disorder” that “impaired his
mental capacity” such that he either “did not understand the
nature and consequences of what he was doing” or “did not
know the difference between right and wrong with respect to
what he was doing.” The court overruled Bigelow’s objec-
tion to its draft instruction, and it refused Bigelow’s proposed
insanity instruction on the basis that the evidence did not
justify it.
The court gave an intoxication instruction, including both
voluntary and involuntary intoxication, to which neither the
State nor Bigelow objected. The intoxication instruction is set
forth in full in our analysis below.
The jury found Bigelow guilty of third degree assault on an
officer. The court entered judgment based on the verdict, and
it later found Bigelow to be a habitual criminal. The court sen-
tenced Bigelow to imprisonment for a mandatory minimum of
10 years and a maximum of 12 years.
Bigelow appealed his conviction to the Court of Appeals. He
claimed that the district court erred when it (1) refused his pro-
posed insanity defense instruction and (2) gave the intoxication
instruction. Bigelow also set forth certain claims of ineffec-
tive assistance of counsel, each of which the Court of Appeals
found to be either refuted by the record or not capable of
review on direct appeal; Bigelow does not seek further review
of the ineffective assistance claims, and they are not further
discussed herein.
The Court of Appeals rejected Bigelow’s assignments of
error regarding the instructions and affirmed Bigelow’s con-
viction. State v. Bigelow, No. A-18-006, 2019 WL 286641(Neb. App. Jan. 22, 2019) (selected for posting to court web-
site). Regarding the proposed insanity instruction, the Court
of Appeals agreed with the district court’s determination that
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STATE v. BIGELOW
Cite as 303 Neb. 729the evidence did not support an insanity defense. The Court of
Appeals noted Hartmann’s testimony that it was not a mental
disease, defect, or disorder that caused Bigelow to act the way
he did but instead that he was suffering impairment from the
three drugs he had been given at the hospital.
Regarding the intoxication instruction, the Court of Appeals
noted that Bigelow had not objected to the instruction and it
therefore reviewed the instruction only for plain error. The
Court of Appeals cited Neb. Rev. Stat. § 29-122 (Reissue 2016)
and determined that the instruction given by the district court
“was an accurate statement of the involuntary intoxication
defense in Nebraska,” because the instruction tracked the pro-
visions of § 29-122. State v. Bigelow, 2019 WL 286641 at *4.
The Court of Appeals further determined that the evidence sup-
ported the intoxication instruction, because there was evidence
that Bigelow was injected with three drugs and Hartmann testi-
fied that those drugs had an intoxicating effect on Bigelow and
impaired his judgment.
We granted Bigelow’s petition for further review.
ASSIGNMENT OF ERROR
Bigelow claims that the Court of Appeals erred when it con-
cluded that the evidence did not support an insanity instruction.
STANDARD OF REVIEW
[1] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. State v. Mann, 302 Neb. 804, 925
N.W.2d 324 (2019).
ANALYSIS
Bigelow claims on further review that the Court of Appeals
erred when it determined that the evidence did not support an
insanity instruction and concluded that the district court had
correctly refused his proposed instruction. He generally con-
tends that under Nebraska law, involuntary intoxication can
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STATE v. BIGELOW
Cite as 303 Neb. 729support an insanity defense. He specifically contends that the
evidence he presented regarding the effect of the three drugs
given to him at the hospital caused him to be involuntarily
intoxicated which, in turn, resulted in legal insanity, thus sup-
porting an insanity defense instruction.
[2] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. State v. Mann, supra.
In the present case, the Court of Appeals determined that there
was no reversible error because Bigelow’s tendered insanity
instruction was not warranted by the evidence; the Court of
Appeals therefore did not need to determine whether the ten-
dered instruction correctly stated the law.
As noted, Bigelow contends that evidence of his involun-
tary intoxication supported an insanity defense. He argues
that although case law such as State v. Hotz, 281 Neb. 260,
795 N.W.2d 645 (2011), and statutes such as § 29-122 and
Neb. Rev. Stat. § 29-2203(4) (Reissue 2016) establish that
the insanity defense is not available in cases involving a
temporary condition resulting from voluntary intoxication,
we have not addressed whether the insanity defense is avail-
able when the defendant’s mental state is altered by involun-
tary intoxication.
In order to address Bigelow’s argument, we first review
Nebraska law relating to the insanity defense, the intoxica-
tion defense, and the interplay of the two. We then consider
whether, based on such law, an insanity instruction was war-
ranted based on the evidence in this case. Thereafter, we
consider whether an intoxication instruction was warranted
instead of an insanity instruction and, if so, whether the
intoxication instruction given by the district court in this case
was appropriate.
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Nebraska Supreme Court A dvance Sheets
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STATE v. BIGELOW
Cite as 303 Neb. 729Insanity Defense and Intoxication Defense
Developed in Nebraska Common Law
and Are Controlled to Some
Extent by Statute.
Bigelow’s arguments raise issues regarding the insanity
defense, the intoxication defense, and the interplay of the two.
The two defenses have developed in Nebraska as separate
defenses which operate distinctly, and each defense applies to a
different circumstance. However, our case law has recognized
a degree of intersection between the two concepts.
[3] In Nebraska, as a general matter, the insanity defense
and the intoxication defense were each developed by case law.
The two developed to address different issues, and they oper-
ate in distinct ways. Generally, under Nebraska’s common-law
definition, the insanity defense requires proof that (1) the
defendant had a mental disease or defect at the time of the
crime and (2) the defendant did not know or understand the
nature and consequences of his or her actions or that he or
she did not know the difference between right and wrong. See
State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017). As it
developed under common law in Nebraska, the intoxication
defense required that “the defendant must not have become
intoxicated to commit the crime and, because of the intoxi-
cation, must have been rendered wholly deprived of reason.
The excessive intoxication must support a conclusion that the
defendant lacked the specific intent to commit the charged
crime.” State v. Dubray, 289 Neb. 208, 239, 854 N.W.2d 584,
611-12 (2014).
The two defenses operate in different ways. Although a suc-
cessful insanity defense operates as a complete defense to the
offense, the intoxication defense does not and instead is treated
as a factor the jury may consider when determining whether
the defendant had the requisite mental state. We stated in State
v. Hotz, 281 Neb. 260, 270, 795 N.W.2d 645, 653 (2011),
“[i]n Nebraska, the intoxication defense has been available to
a defendant under common law almost as long as the insanity
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Cite as 303 Neb. 729defense.” However, we described the intoxication defense as
not being a “justification or excuse for a crime,” but as a factor
that could be “considered to negate specific intent.” Id. As we
noted in State v. Hood, 301 Neb. 207, 217, 917 N.W.2d 880,
889 (2018), with regard to an intoxication defense:
In State v. Vosler, [216 Neb. 461, 345 N.W.2d 806(1984),] we noted that “although there is but one type of
insanity which will support a finding of not guilty or not
responsible by reason of insanity, there are a variety of
mental conditions which bear upon the ability to form a
specific intent.”
We stated in State v. Dubray, 289 Neb. at 239, 854 N.W.2d at
611-12, that “[u]nder Nebraska common law, intoxication is
not a justification or excuse for a crime, but it may be consid-
ered to negate specific intent.”
In past cases, most notably in State v. Hotz, supra, we have
recognized some interplay between intoxication and insanity.
Bigelow notes case law such as Hotz and the Legislature’s
amendment of § 29-2203, which amendment became effective
after we filed our decision in Hotz, to include subsection (4)
which provides, “For purposes of this section, insanity does not
include any temporary condition that was proximately caused
by the voluntary ingestion, inhalation, injection, or absorption
of intoxicating liquor, any drug or other mentally debilitating
substance, or any combination thereof.” See 2011 Neb. Laws,
L.B. 100, § 2. Bigelow relies on such case law and the spe-
cific references in § 29-2203(4) to a “temporary” condition
caused by “voluntary” intoxication to argue that Nebraska law
recognizes an insanity defense based on either a temporary
condition caused by involuntary intoxication or a permanent
condition caused by long-term alcohol or drug use. However,
as discussed further below, we need not examine this precedent
or determine the effect of § 29-2203(4) on such precedent in
the present case. The evidence presented by Bigelow does
not establish that his condition at the time of the incident was
“insanity” as defined in our case law, regardless of whether the
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STATE v. BIGELOW
Cite as 303 Neb. 729condition was temporary or permanent or whether the condi-
tion was caused by voluntary or involuntary intoxication.
Having reviewed the current state of Nebraska law on the
insanity defense and the intoxication defense, we apply the law
to the specifics of the present case.
District Court and Court of Appeals Correctly
Concluded That Evidence in This Case
Did Not Support Insanity Defense
Instruction Proposed by Bigelow.
Applying the law just discussed, we note that in order to
support an insanity defense, regardless of the cause of the
insanity, a mental disease or defect must be shown. The evi-
dence presented by Bigelow did not show that Bigelow suf-
fered from such disorders.
Contrary to Bigelow’s arguments, Hartmann’s testimony
did not support a finding of insanity caused by involuntary
intoxication. Hartmann testified that Bigelow’s behavior in
the emergency room was caused by the “effect” of the three
drugs given to him at the hospital. However, Hartmann did
not characterize such “effect” as “insanity,” because he did not
testify that the intoxication caused a mental disease or defect.
Hartmann did not accept that description when defense counsel
posed a question using the language of “mental disease, defect
or disorder,” and he instead referred to the “effects” of the
drugs. On cross-examination, when the State posited that it was
not mental disease that caused Bigelow’s behavior but instead
“impairment due to the three drugs,” Hartman agreed. Neither
“effects” of drugs nor “impairment” caused by drugs estab-
lishes the mental disease or defect required in the law to sup-
port an insanity defense. Without evidence linking intoxication
to a mental disease or defect or disorder, there is no evidence
to support an insanity defense. Although Hartmann’s testimony
attributing Bigelow’s behavior to the effects of the three drugs
or impairment caused by the three drugs was sufficient to sup-
port an involuntary intoxication defense, it did not support an
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STATE v. BIGELOW
Cite as 303 Neb. 729insanity defense. We therefore agree with the Court of Appeals
that the district court did not err when it refused Bigelow’s
proposed insanity instruction, because it was not supported by
the evidence.
Evidence Supported Intoxication Instruction.
As the district court noted, there was evidence in this case
of both voluntary intoxication, caused by Bigelow’s use of
methamphetamine, and involuntary intoxication, caused by the
three drugs given to him at the hospital. The court therefore
gave an intoxication instruction that addressed both voluntary
and involuntary intoxication. We agree with the district court
and Court of Appeals that an intoxication instruction was war-
ranted by the evidence.
Regarding the district court’s determination that there was
evidence of involuntary intoxication in this case, we do not
appear to have addressed whether use of prescribed medica-
tion or drugs given by medical personnel can be considered
involuntary intoxication. We note that other jurisdictions have
determined that one type of “involuntary intoxication is when
the substance was taken pursuant to medical advice.” 2 Wayne
R. LaFave, Substantive Criminal Law § 9.5(g) at 69-70, n.65
(3d ed. 2018) (citing cases). But see People v. McMillen, 2011
IL App (1st) 100366, 961 N.E.2d 400, 356 Ill. Dec. 304 (2011)
(stating that defendant’s intoxication due to unexpected inter-
action between prescription medicine and voluntarily ingested
cocaine did not render defendant involuntarily intoxicated). We
believe that under § 29-122, use of medically advised drugs
could be involuntary intoxication if the defendant did not know
the intoxicating effect of the drug or did not voluntarily take
the drug.
From the evidence in this case, the jury could have found
Bigelow’s behavior in the emergency room was caused by
his voluntary ingestion of methamphetamine before he was
brought to the hospital or by an interaction of the drugs given
at the hospital with the methamphetamine he had voluntarily
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Cite as 303 Neb. 729ingested. In contrast, based on Hartmann’s testimony, the jury
could have found that his behavior was caused solely by the
effect of the three drugs given to him at the hospital, in which
case, Bigelow was involuntarily intoxicated. Finally, based on
evidence such as the deputy sheriff’s testimony that shortly
after assaulting the security officer, Bigelow was “completely
compliant” with the deputy sheriff’s show of force, the jury
could have determined that neither the methamphetamine nor
the three drugs given at the hospital had affected Bigelow to
the point that he did not have the mental ability to consciously
form the requisite intent when he assaulted the security officer
minutes earlier.
Because each of these findings was cognizable under
Nebraska law and because each finding could be supported
by the evidence, it was proper for the court to instruct the
jury on these options. It is appropriate for a court to instruct
on alternate theories if each is supported by the evidence. By
its verdict of guilty, the jury determined that either Bigelow’s
behavior was caused by his voluntary use of methamphetamine
or, if his behavior was caused by involuntary intoxication, his
mental state was not affected by any of the substances to the
point that he could not form the requisite intent.
In sum, we conclude that based on the evidence in this case,
the district court did not err when it refused Bigelow’s pro-
posed insanity instruction and did not err when it instead gave
an instruction on intoxication.
Intoxication Instruction Given by District Court
Correctly Stated Law, Was Not Misleading, and
Adequately Covered Intoxication Issues
Supported by Evidence in This Case.
Because it does not appear that since the enactment of
§ 29-122 in 2011 we have considered an appeal in a case in
which there was evidence that supported giving an involuntary
intoxication instruction, we take this opportunity to review
the intoxication instruction given in this case to consider how
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Cite as 303 Neb. 729issues of intoxication should be presented to a jury in light of
§ 29-122.
In cases we have decided since the enactment of § 29-122
in which the defendant had sought an intoxication instruction,
we have determined that the case involved only evidence of
voluntary intoxication and that therefore, the court below cor-
rectly refused to instruct on an intoxication defense. See, State
v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018); State v.
Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016). In addition,
we have not had the opportunity to consider the propriety of a
court’s instruction in light of § 29-122 when there is evidence
of involuntary intoxication and, as in this case, evidence of
both voluntary and involuntary intoxication.
The district court in this case gave the following instruction
regarding intoxication:
There has been evidence that [Bigelow] was intoxi-
cated at the time that the crime with which he is charged
was committed.
Voluntary intoxication is not a defense to the crime
charged. You may not consider his voluntary intoxication
in determining whether he had the required intent to com-
mit the crime charged.
Evidence that . . . Bigelow was involuntarily intoxi-
cated may be taken into consideration if he proves by
clear and convincing evidence that he did not:
(1) know that it was an intoxicating substance when
he or she ingested, inhaled, injected, or absorbed the sub-
stance causing the intoxication; or
(2) ingest, inhale, inject, or absorb the intoxicating sub-
stance voluntarily.
Such involuntary intoxication is a defense only when a
person’s mental abilities were so far overcome by the
involuntary intoxication that he could not have had the
required intent.
In this case . . . Bigelow has the burden of proving
involuntary intoxication by clear and convincing evidence.
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Cite as 303 Neb. 729Clear and convincing evidence means evidence that
produces a firm belief or conviction about the fact to be
proved. Clear and convincing evidence means more than
the greater weight of the evidence and less than proof
beyond a reasonable doubt.
[4] We have stated that jury instructions are not prejudicial
if, when taken as a whole, they correctly state the law, are not
misleading, and adequately cover the issues supported by the
pleadings and the evidence. State v. Mann, 302 Neb. 804, 925
N.W.2d 324 (2019). Under these standards, we conclude the
intoxication instruction given by the court in this case cor-
rectly stated the law as set forth in § 29-122, by stating that
voluntary intoxication is not a defense; that intoxication could
be considered in connection with the required mental state if
such intoxication is shown to be involuntary, consistent with
§ 29-122; and that Bigelow had the burden to show by clear
and convincing evidence that he was involuntarily intoxicated.
We further determine that the instruction was not misleading
and that it adequately covered the issues relating to intoxica-
tion that were supported by the pleadings and evidence in
this case.
CONCLUSION
We conclude that the Court of Appeals was correct when
it concluded that the district court did not err when it refused
Bigelow’s proposed insanity defense instruction. We further
conclude that the evidence in this case did support an instruc-
tion regarding both voluntary and involuntary intoxication
and that the intoxication instruction given by the district court
in this case correctly stated the law, was not misleading, and
adequately covered the issues relating to intoxication that were
supported by the pleadings and evidence. We therefore affirm
the decision of the Court of Appeals which affirmed Bigelow’s
conviction for third degree assault on an officer.
A ffirmed.