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


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  • #27484-r-JMK
    
    2016 S.D. 31
    IN 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
    #27484
    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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