#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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