State v. Liaw , 2016 S.D. LEXIS 56 ( 2016 )

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2016 S.D. 31IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JEREMIAH BADIT LIAW, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE LAWRENCE E. LONG
Judge
****
MARTY J. JACKLEY
Attorney General
PATRICIA ARCHER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
BEAU J. BLOUIN
Minnehaha County
Public Defenders Office
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
****
ARGUED ON MARCH 22, 2016
OPINION FILED 04/06/16
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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.
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[¶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
more information about what had just happened. Calin told the dispatcher that
Liaw had “scared the hell out of [her].”
[¶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, were you over here?
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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 (SDCL 22-19-1(3)) and kidnapping in the second
degree—injury or terrorize (SDCL 22-19-1.1(3)). 1 Liaw did not testify at trial. He
presented expert testimony from a licensed addiction counselor who testified
generally about the effects of alcohol at high levels, increasing tolerance and
detoxification. Liaw’s defense was based in part on his argument that he was so
intoxicated he could not form the requisite “purpose” required by the statute. At
the conclusion of the evidence, Liaw proposed a pattern jury instruction defining
1. Liaw was also charged with aggravated assault and criminal trespass. He
was acquitted of the former and sentenced to time already served for the
latter.
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specific intent. The trial court denied the instruction, ruling that second-degree
kidnapping is a general intent crime. Liaw also proposed a pattern jury instruction
on voluntary intoxication. The trial court gave a portion of this instruction but
eliminated the references to specific intent. The jury convicted Liaw of the charge
of second-degree kidnapping.
[¶7.] Liaw appeals the kidnapping conviction raising two issues:
1. Whether second-degree kidnapping is a specific intent
crime.
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.
SDCL 22-19-1.1 defines kidnapping as, “Any person who unlawfully holds or retains
another person with any of the following purposes . . . . To inflict bodily injury on or
to terrorize the victim or another[.]” Liaw argues that the language “with any of the
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following purposes” indicates that the Legislature intended the crime to require
some intent beyond the intent to do the physical act.
[¶10.] SDCL 22-1-2 defines the various levels of mens rea required to commit
a crime. It is primarily patterned after the Model Penal Code (MPC). See Schouten,
2005 S.D. 122, ¶ 14, 707 N.W.2d at 824. The statute lists the varying levels of
mental culpability in descending order as maliciously, intentionally, knowingly,
recklessly, and negligently. SDCL 22-1-2; see also Schouten, 2005 S.D. 122, ¶ 14,
707 N.W.2d at 824. While South Dakota has adopted the MPC’s mens rea levels,
the common law distinction of specific intent versus general intent is still a part of
our jurisprudence. Id. (“Although our Legislature relied heavily on the MPC when
it revised the South Dakota criminal code in 1976, it did not exclude references to
general and specific intent.”). This common law distinction between general and
specific intent crimes is codified at SDCL 22-1-2(1)(b)-(c). 2
[¶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
2. Subdivision (b) of the statute defines “intent, intentionally” and all its
derivatives as “a specific design to cause a certain result or, if the material
part of a charge is the violation of a prohibition against conduct of a certain
nature, regardless of what the offender intends to accomplish thereby, a
specific design to engage in conduct of that nature[.]” Subdivision (c) of the
statute defines “knowledge, knowingly” and all its derivatives as “only a
knowledge that the facts exist which bring the act or omission within the
provisions of any statute. A person has knowledge if that person is aware
that the facts exist which bring the act or omission within the provisions of
any statute.”
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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.
[¶12.] In Schouten, we applied the above definitions to the offense of sliming
to determine the appropriate mens rea for the offense. 2005 S.D. 122, ¶¶ 14-16, 707
N.W.2d at 824-25. Schouten was convicted of violating SDCL 22-18-26, which
provides that one who “intentionally throws, smears, spits, or otherwise causes [a
bodily fluid] to come into contact with a Department of Corrections employee” is
guilty of a felony. Schouten argued that this was a specific intent offense and that
he was entitled to present a diminished capacity defense of mental illness to negate
the intent. Schouten, 2005 S.D. 122, ¶ 11, 707 N.W.2d at 823. In analyzing the
question, we began by describing the prohibited conduct—intentionally throwing
bodily fluids or waste causing them to come into contact with a DOC employee. Id.
¶ 16, 707 N.W.2d at 824-25. The statute required the offender to intend to throw
bodily fluids or waste to come into contact with a DOC employee. Id. Because the
statute lacked language requiring a specific design or purpose for doing the
prohibited act we held it was a general intent crime. Id.[¶13.] To further emphasize the distinction we compared this statute to
SDCL 22-18-26.1 which provides, that “[a]ny person who, with the intent to assault,
throws, smears, or causes [bodily fluids or waste] to come into contact with a law
enforcement officer” is guilty of a misdemeanor. Id. ¶ 17, 707 N.W.2d at 825(quoting SDCL 22-18-26.1). We noted that the emphasized language indicated that
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the “Legislature designed the statute so as to require a ‘specific design to cause a
certain result[,]’”—namely an assault. Id. (quoting SDCL 22-1-2). We concluded
that because the State was required to prove “an additional mental state beyond
that accompanying the act itself,” it was a specific intent crime. Id. ¶ 19, 707
N.W.2d at 825 (quoting Taecker, 2003 S.D. 43, ¶ 25, 661 N.W.2d at 718).
[¶14.] SDCL 22-19-1.1 does not prohibit only unlawfully holding or
restraining another person. The statute prohibits engaging in such conduct with
the purpose of inflicting bodily injury or terrorizing the victim. While it is true that
none of the levels of mens rea set forth in SDCL 22-1-2 are referenced in the
kidnapping statute, the language “any person who unlawfully holds or retains
another person with any of the following purposes” indicates a higher level of intent
than is required to perform the act itself. SDCL 22-19-1.1 (emphasis added).
[¶15.] This interpretation is bolstered by the Supreme Court’s holding in
United States v. Bailey, wherein the Court analyzed mens rea as it applied to the
crime of escape from a federal penitentiary. 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. 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 where
we described the difference between general and specific intent crimes concluding,
“[S]pecific intent crimes would be limited only to those crimes which are required to
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be committed either purposefully or knowingly, while general intent crimes would
encompass those crimes which can be committed either recklessly or negligently.”
294 N.W.2d 416, 417 (S.D. 1980) (internal quotation marks omitted) (quoting People
v. Lerma, 239 N.W.2d 424, 425 (1976)). The Vermont Supreme Court also reached
the same result in State v. Jackowski, holding that the common law term “specific
intent” correlates to the MPC term of “purposefully,” and “general intent” correlates
to “knowingly.” 915 A.2d 767, 771 (Vt. 2006). The court stated that “a person acts
‘purposely’ when ‘it is his conscious object to engage in conduct of that nature or to
cause such a result.’” Id. (quoting MPC § 2.02(2)(a)(i)).
[¶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, 140 P.3d 866, 877, n.6 (Cal. 2006), as modified (Nov. 1, 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, Del. Code Ann. tit. 11,
§ 783 (West), which is nearly identical to South Dakota’s); In re C.P.W., 213 P.3d
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413, 418 (Kan. 2009) (holding that kidnapping requires the general intent to confine
a person, but the specific intent to hold the victim for ransom, to facilitate a crime,
to interfere with governmental functions, or to terrorize or inflict bodily injury on
the victim); State v. Rodriguez, 664 S.E.2d 654, 660 (N.C. Ct. App. 2008) (holding
that “[k]idnapping is a specific intent crime, and therefore the State must prove
that defendant unlawfully confined, restrained, or removed the victim for one of the
specified purposes outlined in the statute”); State v. Avery, 709 N.E.2d 875, 883
(Ohio Ct. App. 1998) (“The inclusion of the five purposes in [Ohio’s kidnapping
statute] requires the state to show that the accused had a specific purpose in
restraining the victim’s liberty.”).
[¶17.] Similarly, we hold that SDCL 22-19-1.1 is a specific intent crime. The
State was required to prove beyond a reasonable doubt that Liaw engaged in the
prohibited conduct with the purpose of inflicting bodily injury or terrorizing the
victim. Liaw’s proposed instruction would have correctly informed the jury that if
the State failed to prove specific intent, then the crime of kidnapping had not been
committed.
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
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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).
[¶19.] We have previously addressed the effect of failing to give instructions
regarding specific intent. In State v. Jacquith, we held that larceny was a specific
intent crime, “and the jury should be so instructed.” 272 N.W.2d 90, 94 (S.D. 1978).
We also addressed the issue in State v. Soft, 329 N.W.2d 128, 130 (S.D. 1983). In
Soft, we reversed a conviction for grand theft where the trial court did not give an
instruction on specific intent. Id. “We believe the trial court must instruct
separately on the specific intent element of grand theft. That instruction was
specifically requested by the appellant in the case at hand. Since the trial court
failed to so instruct, we reverse the conviction for grand theft.” Id. This court also
recently discussed the issue in State v. Vargas, a case involving attempted fetal
homicide. 2015 S.D. 72, ¶ 17, 869 N.W.2d 150, 157. In Vargas, the trial court failed
to instruct the jury that the State must prove beyond a reasonable doubt that the
defendant had the specific intent to cause the death of the unborn child. Id. The
conviction was reversed as this Court could not determine whether the jury found
the defendant had the requisite specific intent. Id.[¶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
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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
3. Liaw’s Proposed Jury Instruction No. 2 concerning specific intent read as
follows:
In the crime of Kidnapping in the Second Degree, there must
exist in the mind of the perpetrator the specific intent to inflict
bodily injury or to terrorize Angela Calin or another. If specific
intent did not exist, this crime has not been committed.
This instruction mirrors South Dakota Pattern Jury Instruction 1-12-2.
4. The trial court only included the first two paragraphs of Liaw’s Proposed
Jury instruction No. 3 concerning voluntary intoxication:
There is evidence in this case that the defendant may have been
intoxicated at the time of the alleged commission of the offense.
No act committed by a person while in a state of voluntary
intoxication is less criminal because of the intoxicated condition.
However, you may consider the fact, if it is a fact, that the
accused was intoxicated at the time of the alleged offense in
determining the purpose, motive, or intent with which the act
was committed, if the act was committed by the defendant.
An element of the offense of _______ is the defendant had the
specific intent to _______. Even though the defendant may have
been intoxicated to some degree, if you find that the state has
proved beyond a reasonable doubt that the defendant was
capable of forming the specific intent to ________ and had such
specific intent and that the state has proved beyond a
reasonable doubt all other elements of the offense charged, you
may find the defendant guilty.
(continued . . .)
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correctly instructed the jury on how to consider evidence of intoxication in
relationship to Liaw’s ability to form specific intent. 5 It is likely that the jury was
confused by the elements of the crime, and believed that it was sufficient that Liaw
actually did terrorize Calin, rather than that he intended to terrorize Calin. It is
impossible to correctly instruct the jury of the necessary elements of second-degree
kidnapping without instructing on specific intent. In light of our previous holdings
regarding specific intent and the likely confusion caused by the instructions used in
this case we hold that the trial court abused its discretion by denying Liaw’s
proposed instructions.
[¶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)).
_________________________________
(. . . continued)
If you find the defendant at the time of the alleged offense was
so intoxicated as to have no volition and had lost control of
(his)(her) will and was incapable of forming a purpose or intent,
then specific intent is lacking and you must return a verdict of
not guilty.
Liaw’s Proposed No. 3 mirrors South Dakota Pattern Jury Instruction 2-6-1.
5. We acknowledge that pattern jury instructions are not law, and a court is not
bound to follow them. However, “they are often grounded in long-standing
practice. They have also ‘been carefully drafted to reflect the law.’” State v.
Nekolite, 2014 S.D. 55, ¶ 17, 851 N.W.2d 914, 919 (quoting State v. Eagle
Star, 1996 S.D. 143, ¶ 15 n.2, 558 N.W.2d 70, 73 n.2).
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[¶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
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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 SDCL 22-19-1.1. While it was not incorrect for the court to
instruct the jury as such, it was also necessary to separately instruct the jury on
specific intent as it was an element of the offense. Additionally it was necessary to
correctly instruct the jury on voluntary intoxication.
[¶24.] This Court discussed the issue of prejudice in the context of an
intoxication jury instruction in State v. Bittner, 359 N.W.2d 121, 125 (S.D. 1984).
While we held that the trial court’s denial of the jury instruction was harmless
error, we did so only because the “evidence [was] overwhelming that Bittner was not
so intoxicated as to raise any reasonable doubt concerning his capacity to form the
specific intent necessary to commit the crimes with which he was charged.” Id.This case presents a much different scenario from Bittner. Liaw presented
significant evidence that he was heavily intoxicated. Because of this evidence of
intoxication, a jury instruction regarding specific intent, and the inclusion of the
specific intent language in the instruction on voluntary intoxication, likely would
have resulted in a different outcome in the trial.
Conclusion
[¶25.] Kidnapping in the second degree, in violation of SDCL 22-19-1.1 is a
specific intent crime. The State was required to prove beyond a reasonable doubt
that Liaw had the specific intent to “inflict bodily injury or terrorize” Angela Calin
and the jury should have been so instructed. Additionally, Liaw was entitled to an
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accurate and complete instruction on voluntary intoxication so that the jury could
properly consider his defense. Liaw was prejudiced by the trial court’s abuse of
discretion. The conviction is reversed and the case remanded.
[¶26.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
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