Filed 6/21/16 P. v. Grohs CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141282
v.
RALPH GROHS,                                                         (Contra Costa County
                                                                     Super. Ct. No. 11596758)
         Defendant and Appellant.


         Defendant Ralph Grohs was charged with one count of attempted kidnapping of a
child under 14 years of age, but convicted by a jury of a single misdemeanor count of
attempted false imprisonment, a lesser included offense. It was undisputed that defendant
was intoxicated on the day of the alleged crime, and that he was an alcoholic. The jury
was instructed that it could consider defendant’s voluntary intoxication only in
connection with whether he acted with intent to kidnap. On appeal, defendant argues this
was prejudicial error because voluntary intoxication was also relevant to his defense to
the attempted false imprisonment charge for which he was ultimately convicted. We
agree and reverse the judgment.
                        FACTUAL AND PROCEDURAL BACKGROUND
Prosecution evidence
         On the morning of Saturday, October 12, 2013, Andrea R. and her eight-year-old
daughter, referred to as Jane Doe (Jane) at trial, were visiting the Lafayette Library. As
they left the library, Andrea R. noticed someone out of the corner of her eye. Jane, who
was walking five feet behind Andrea R., ran to catch up to her mother and said she


                                                             1
wanted to go to their car. The two walked down a set of stairs toward their car, but when
Andrea R. looked back, she saw that the person she noticed earlier was now following
them. She no longer felt safe walking to the parking garage, so she and Jane walked
down a second set of stairs to the street. By this point, the man was chasing Andrea R.
and Jane, and was approximately 20 feet behind them. The man was “walking briskly,
although unsteady,” toward them. Andrea R. heard the man say, “She thinks she’s for
you, but she’s for me.”
      Andrea R. believed it would be safest if she and her daughter went to a public
area, so she walked toward a nearby sewing shop where Jane had taken sewing classes.
The man continued to follow them and was yelling. He was walking with an unsteady
gait and appeared “very disheveled.” Andrea R., who worked in a rehabilitation hospital
with “special needs” children, could not understand what the man was saying and
believed he “had special needs,” and that “there was something wrong with him.”
      Andrea R. and her daughter crossed a street, and Andrea R. began running as fast
as she could with an eight-year-old in tow. When they arrived at the sewing shop, Jane
fell down. The man reached for Jane, but Andrea R. was able to grab her first and pull
her into the store. After Andrea R. and Jane were inside, Meredith MacLeod, who
worked at the sewing shop, locked the door. The man banged on the door. MacLeod
briefly observed him as having “glazed-over eyes, craziness.” He was “sort of
disheveled” and “was not someone who looked coherent or well.”
      Andrea R. called the police, who arrived a few minutes later, and Andrea R.
described the man who had chased her and Jane. Sometime after 3:00 p.m. that same
afternoon, police spotted defendant near the Lafayette Library and identified him as
matching the description provided by Andrea R. The officers contacted defendant as he
was exiting a bathroom at the library. He appeared intoxicated and was carrying a bottle
of alcohol in a grocery bag. Officer Berch Parker took two pictures of defendant and sent
one of them via text message to MacLeod and Andrea R. MacLeod responded that she
thought it was the same person she saw outside of the sewing shop, but she was not
entirely sure. Andrea R. responded that she thought it was the same person that chased


                                            2
her, but because she was a little hesitant, Officer Parker asked her to come to the library
to observe the man in person. When Andrea R. arrived and observed defendant, she was
“a hundred percent” sure it was the same person.
       Defendant was arrested and transported to the police station. Once there, Parker
read defendant his Miranda rights and began questioning him. Defendant said he woke
up at 9:30 that morning, and was given a bottle of vodka by a friend around 10:00 a.m.
Defendant did not remember how much of it he drank, although he knew it was less than
a whole bottle because he would have passed out if he drank the whole bottle. Defendant
said he stopped drinking at 4:00 p.m. Defendant still felt intoxicated during the
questioning, but was more intoxicated earlier in the day around noon. Defendant blacks
out when he drinks, but denied ever doing “anything crazy” when he blacked out.
       Defendant admitted he was at the Lafayette library earlier in the day around
“11:00 something,” but when Parker asked him if he was talking to anybody when he was
there, defendant responded, “No. I never touched––I’m innocent.” Parker accused
defendant of lying and told him the police had video from the library. Defendant
responded, “Then I just said hello. I—I don’t really remember.”
       At one point during the interrogation, Parker administered a preliminary alcohol
screening (PAS) test to determine defendant’s blood-alcohol level; it was .20. Parker
then resumed his questioning, and defendant continued to deny chasing a woman or her
child down the street. When Parker told defendant that he was “ID’d by two different
people,” defendant said he could not believe he would do such a thing and had no
recollection of chasing a girl and her mother.
Defense evidence
       Dr. Mitchell Eisen, an expert witness on eyewitness memory and identification,
testified at length about the lack of reliability of the identifications made by Andrea R.
and MacLeod. The details of Dr. Eisen’s testimony are not relevant to this appeal.1

       1
         Defendant also sought to introduce third-party culpability evidence showing that
a person named “Dave” was the perpetrator, but the trial court denied defendant’s
request.


                                              3
       Defendant also called three witnesses who testified about his character and his
alcoholism. John Nunes is a lifelong friend and former coworker. According to Nunes,
defendant is an alcoholic and began struggling with alcohol in the mid to late 1990’s; his
abuse “accelerated in the 2000’s.” Nunes has seen defendant intoxicated at least 20
times. Defendant was “passive” when he drank; he usually drank alone and did not get
mean or angry. Sometimes, defendant was “fairly intoxicated” when Nunes observed
him, while at other times he was just “moderately” intoxicated. In 2005, Nunes worked
as a labor union representative for Safeway and helped defendant, who worked for
Safeway, gain admission to an alcohol rehabilitation program. Defendant, however,
eventually lost his job because of his alcohol abuse.
       Defendant’s ex-wife, Stephanie Randhawa, testified that she and defendant were
married in 1989 and divorced in 1995 or 1996. They had a daughter together in 1992.
Defendant never displayed strange or violent behavior toward their daughter, and did not
act abnormally around Randhawa’s other daughter from a later marriage, who defendant
babysat almost every other day. Randhawa knew defendant was an alcoholic; he started
drinking about a year after the birth of their daughter. On some occasions, defendant
passed out because he was heavily intoxicated. Defendant began to “really struggle” with
alcohol over the last year, and Randhawa would not let him babysit her other daughter
anymore. Defendant had been homeless at times since 2013. In October 2013––the
month of the alleged crime––Randhawa noticed that defendant was drunk a lot of the
time, and Randhawa contacted defendant less frequently.
       Defendant’s older sister, Judith Cubillo, testified that in September 2013,
defendant spent time in jail due to an alcohol related issue. He then spent approximately
one week in a rehabilitation program, and was homeless for a week and a half after that.
Cubillo has never known defendant to be violent, and there was nothing abnormal about
his interactions with the children in their family. Cubillo was aware that defendant is an
alcoholic. When defendant is intoxicated, he “just wants to be left alone.” Defendant is
not a “mean drunk,” and it is not in his character to act violently or harm a child, even
when he is drinking.


                                             4
          Defendant testified on his own behalf. He previously worked at Safeway for 35
years, and is now a homeless alcoholic. Alcoholism resulted in his “loss of family,
friends, job, soul.” He was convicted of petty theft in September 2013 for stealing
alcohol, and had two felony convictions for driving under the influence of alcohol in
2008. There is no “normal” amount of alcohol he drinks in a day, and drinking half a
bottle of vodka gets him “pretty well intoxicated.” His alcohol use causes blackouts, but
he denied that he ever became violent or angry while intoxicated.
          Defendant explained that he had arrived in Lafayette a few days before October
12. He was just “kind of drifting in the streets.” On October 12, defendant started his
morning with a cup of coffee at a coffee shop but had nothing to eat. He then began
drinking vodka. He had two bottles of vodka with him, one full and the other already
open. Defendant drank approximately half a bottle of vodka at the coffee shop, and he
was “substantially drunk.”
          Defendant admitted he was at the Lafayette Library on October 12 sometime after
10:00 a.m. Defendant went there because he enjoyed reading and was in the process of
reading a book about Thomas Jefferson. When asked to describe how drunk he was upon
entering the library, defendant said, “My memory would say I was drunk. So I was
drunk. So that would be hard to walk and slurred speech, motor skills limited, so I was
that way.” Defendant continued to drink while in the library, although he did not
remember how much he drank. Defendant denied chasing a little girl and her mother on
October 12, or attempting to kidnap a child. He also denied having ever been at the
sewing shop, and had never seen MacLeod and Andrea R. before his trial.
          Defendant had a vague recollection of being arrested at the library that day, and
recalled “[j]ust a little” about being interrogated by Officer Parker at the police station.
Defendant was “pretty drunk” during the interview. Defendant felt intimidated and
nervous while being questioned, and was guessing when he told Parker what he was
doing during specific timeframes. Defendant was even more intoxicated earlier in the
day. Defendant said that in the past, his blood alcohol level has been over .30 and close
to .40.


                                                5
Jury instructions and verdict
       The trial court instructed the jury on count 1, attempted kidnapping (Pen. Code,
§ 207, subd. (a); § 208, subd. (b); § 664),2 and on the lesser included offense of attempted
misdemeanor false imprisonment. (§ 236/237, subd. (a); § 664.) The jury was also
instructed on voluntary intoxication. The trial court told the jury that it could consider
evidence of voluntary intoxication “only in deciding whether the defendant acted with the
intent to kidnap Jane Doe,” and that “[y]ou may not consider evidence of voluntary
intoxication for any other purpose.”
       The jury returned a verdict the next day, acquitting defendant of attempted
kidnapping, but finding him guilty of attempted false imprisonment. Defendant was
sentenced to 180 days in county jail. Because his presentence credits satisfied the
sentence, he was ordered released from custody.
       Defendant timely appealed.
                                        DISCUSSION
       Defendant raises two issues on appeal. First, he argues that the trial court
committed prejudicial error by instructing the jury, in effect, that it could not consider
defendant’s voluntary intoxication in deciding whether defendant was guilty of attempted
false imprisonment. Second, he argues that the trial court committed prejudicial error by
not permitting him to present evidence that a third-party was culpable for the crime.
Because we hold that there was reversible error in instructing the jury, we do not reach
the second issue.
Background on jury instructions and the lesser included offense
       Defendant submitted a list of proposed jury instructions identified only by
CALCRIM title and number, including CALCRIM No. 3426 on voluntary intoxication.
Neither party requested an instruction on lesser included offenses. The court held a jury
instruction conference on the morning of March 4, 2014, and agreed to give a voluntary



       2
           All further unspecified statutory references are to the Penal Code.


                                               6
intoxication instruction. There was no discussion of any lesser included offenses at that
time.
        The court held a second conference with the attorneys on March 4, at which the
prosecutor asked the court to instruct the jury on the lesser included offense of attempted
false imprisonment.3 Defense counsel responded that she “would leave that to the Court
to determine which lessers are appropriately given.” The trial court tabled the issue for
further discussion at an afternoon conference.
        That afternoon, the trial court gave counsel a revised set of jury instructions,
which included an instruction on misdemeanor attempted false imprisonment as a lesser
included offense. Defense counsel did not object to the instruction, nor did she request a
voluntary intoxication instruction in connection with the crime of attempted false
imprisonment. In short order, the court then ruled on the admissibility of exhibits, took a
brief recess, and instructed the jury.
        We describe the jury instructions relevant to this appeal. The court first instructed
on the crime of attempted kidnapping:
        “To prove that the Defendant is guilty of [attempted kidnapping], the
People must prove: One, that the defendant took a direct but in effective [sic] step
towards committing the crime of kidnapping; and two, that the defendant intended
to commit the crime of kidnapping. . . . [¶] . . . [¶] The elements that are required
for there to be a commission of the crime of kidnapping are following [sic]: A
defendant took, held, or detained another person by using force or by instilling
fear; number two, using that force or fear, the defendant moved the other person or
made the other person move a substantial distance; and three, the other person did
not consent to the movement.”

        3
        The elements of kidnapping are: (1) a person was unlawfully moved by the use
of physical force or fear; (2) the movement was without the person’s consent; and (3) the
movement of the person was for a substantial distance. (§ 207, subd. (a); People v. Ortiz
(2012) 208 Cal.App.4th 1354, 1368.) False imprisonment is “the unlawful violation of
the personal liberty of another.” (§ 236.) The parties do not dispute that attempted false
imprisonment is a lesser included offense of attempted kidnapping.


                                               7
        The court then read the instruction on voluntary intoxication, modified from
CALCRIM No. 3426 to fit this case as follows:
        “[You] [m]ay consider evidence, if any, of the defendant’s voluntary
intoxication only in a limited way. You may consider that evidence only in
deciding whether the defendant acted with the intent to kidnap Jane Doe. A
person is voluntarily intoxicated if he or she becomes intoxicated by willingly
using any intoxicating drug, drink, or other substance knowing that it can produce
an intoxicating effect or willingly assumed the risk of that effect. [¶] In
connection with the charge of kidnapping, the People have the burden of proving
beyond a reasonable doubt that the defendant acted with the intent to kidnap Jane
Doe. If the people have not met this burden, you must find the defendant not
guilty of the charged crime. You may not consider evidence of voluntary
intoxication for any other purpose.” (Emphasis added.)
        The court then instructed the jury on attempted false imprisonment, in pertinent
part:
        “I’m going to now instruct you upon a lesser-included offense that is
known as attempted false imprisonment. [¶] To prove that the defendant is guilty
of false imprisonment, the People would prove that, one, a defendant intentionally
detained or confined a person; and two, that person’s act made that person stay or
go somewhere against that person’s will. . . . [¶] To prove the crime of attempted
false imprisonment, the People must prove, one, that the defendant took a direct
but ineffective step toward committing the crime of false imprisonment; and two,
the defendant intended to commit the crime of false imprisonment.”
        The court did not instruct the jury that it could consider defendant’s voluntary
intoxication in deciding whether defendant committed the lesser included offense of
attempted false imprisonment.
The jury instructions on involuntary intoxication were erroneous
        The basic legal principles are not in dispute: Attempted false imprisonment, like
all attempt crimes, is a specific intent crime. (See People v. Kipp (1998) 18 Cal.4th 349,


                                              8
376 [“An attempt to commit a crime requires a specific intent to commit the crime and a
direct but ineffectual act done toward its commission”].) Evidence of voluntary
intoxication can negate the required mental state of a specific intent crime. (See § 29.4,
subd. (b) [“Evidence of voluntary intoxication is admissible solely on the issue of
whether or not the defendant actually formed a required specific intent . . . .”]; accord
People v. Boyer (2006) 38 Cal.4th 412, 469 [“Voluntary intoxication can prevent
formation of any specific intent requisite to the offense at issue . . . .”].) Evidence of
voluntary intoxication may be applicable to attempted false imprisonment, just as it may
be applicable to attempted kidnapping.
       In directing the jury to consider the evidence of voluntary intoxication solely on
the question of whether defendant formed the mental state to commit attempted
kidnapping, the trial court effectively told the jury it could not consider defendant’s
intoxication in deciding whether defendant committed attempted false imprisonment. We
presume the jury followed the court’s instruction. (People v. Homick (2012) 55 Cal.4th
816, 853.) The instruction was erroneous because evidence of defendant’s intoxication
was relevant to whether defendant formed the specific intent to commit false
imprisonment.
       The Attorney General argues that the evidence did not support giving a voluntary
intoxication instruction in connection with attempted false imprisonment, relying on
People v. Roldan (2005) 35 Cal.4th 646, overruled on other grounds as stated in People v.
Doolin (2005) 45 Cal.4th 390, 421, fn. 22. This argument is unconvincing. In Roldan,
the trial court did not commit error in refusing to instruct the jury on voluntary
intoxication in connection with murder and robbery charges where the evidence of
defendant’s intoxication was “only minimal and insubstantial” (others associated with
him had been drinking, and he told a witness he “felt a little woozy”). (Id. at pp. 715-
716.) Here, as we have described, there was an extraordinary amount of evidence that
defendant was an alcoholic and that he was intoxicated on October 12, 2013. He was
arrested with a bottle of vodka in a bag, he appeared intoxicated to the arresting officer,
he told the officer that he was intoxicated, and he blew .20 on a PAS test. Defendant’s


                                               9
friends and family corroborated his testimony that he was an alcoholic. Even Andrea R.
and MacLeod’s descriptions of the assailant as disheveled and incoherent, with glazed
eyes and an unsteady gait, were consistent with intoxication. On this record, there was
substantial evidence to warrant giving the voluntary intoxication instruction. (See People
v. Williams (1997) 16 Cal.4th 635, 677 [voluntary intoxication instruction appropriate
“when there is substantial evidence of the defendant’s voluntary intoxication and the
intoxication affected the defendant’s ‘actual formation of specific intent.’ [Citations.]”].)
       “Although a trial court has no sua sponte duty to give a ‘pinpoint’ instruction on
the relevance of evidence of voluntary intoxication, ‘when it does choose to instruct, it
must do so correctly.’ ” (People v. Pearson (2012) 53 Cal.4th 306, 325.) Here, by
instructing the jury that it could not consider defendant’s voluntary intoxication in
determining if he intended to commit attempted false imprisonment, the trial court did not
correctly instruct the jury. This was error.
Defendant has not forfeited his claim of instructional error
       The Attorney General contends that defendant forfeited his claim of instructional
error because he did not object to the instructions on voluntary intoxication, or request an
instruction on voluntary intoxication for the crime of attempted false imprisonment. We
reject this argument.
       Initially, we agree that if defendant wanted the trial court to instruct the jury to
consider his voluntary intoxication in connection with attempted false imprisonment, “it
was incumbent upon him to ask, and a claim of error in the failure to so instruct is
forfeited for appellate purposes.” (People v. Townsel (2016) 63 Cal.4th 25, 59
(Townsel).) Defendant’s argument, however, is not merely that the trial court failed to
give the instruction in connection with the attempted false imprisonment charge. Rather,
he contends that in directing the jury to consider voluntary intoxication solely on the
question of whether he formed the mental state required for attempted kidnapping, the
instruction affirmatively and erroneously precluded the jury from considering the
evidence in connection with the attempted false imprisonment charge. “We may review
defendant’s claim of instructional error, even absent objection, to the extent his


                                               10
substantial rights were affected.” (Id. at pp. 59-60; accord § 1259 [“The appellate court
may . . . review any instruction given, refused or modified, even though no objection was
made thereto in the lower court, if the substantial rights of the defendant were affected
thereby”].)
       In Townsel, our Supreme Court held a defendant did not forfeit a claim of
instructional error on appeal under similar circumstances to the ones presented in this
matter. The trial court in Townsel had instructed the jury that it could consider the
defendant’s intellectual disability solely in connection with whether defendant formed an
intent to kill, thereby erroneously precluding the jury from considering defendant’s
intellectual disability on a dissuading a witness charge and a witness killing special-
circumstance allegation. (Townsel, supra, 63 Cal.4th at p. 57.) The defendant never
objected to the instruction, but argued he could challenge the instruction on appeal
because the instructional error affected his substantial rights, and specifically his
constitutional rights “to a fair trial, proof beyond a reasonable doubt and trial by jury on
every element of the charged offenses, a meaningful opportunity to present a defense, and
a reliable jury verdict.” (Id. at p. 60.) The Supreme Court agreed the error affected
defendant’s substantial rights and was reviewable on appeal despite the lack of objection
below. (Ibid.)
       The type of instructional error committed here is indistinguishable from the error
in Townsel; in both cases, the jury was erroneously precluded from considering relevant
evidence on certain charges. Therefore, following Townsel, we hold the trial court’s
incomplete and erroneous instruction in this case affected defendant’s substantial rights,
and that defendant’s assertion of instructional error is not forfeited on appeal.
The instructional error was prejudicial
       Although we conclude the trial court committed instructional error, we will not
reverse the judgment unless we also determine that the error was prejudicial. (People v.
Johnson (2016) 243 Cal.App.4th 1247, 1291 and fn. 31.) The parties dispute the standard
of review for assessing prejudice that applies to this case. Defendant contends the error
violated his federal due process right to have the jury consider a defense at trial, therefore


                                              11
requiring us to consider whether the error was harmless beyond a reasonable doubt under
Chapman v. California (1967) 386 U.S. 18, 23-24 (Chapman).4 The Attorney General
asserts the error is one of state law, which requires us to determine under People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson) whether it is reasonably probable that a
result more favorable to defendant would have been reached absent the error.
       In Townsel, supra, our high court applied the Chapman standard of prejudice to an
instructional error that, as we just explained, is indistinguishable from the error at issue in
this appeal. The high court explained that “[b]ecause the trial court effectively instructed
the jury not to consider that evidence on the charge and allegation, it erred under both
state law and the federal Constitution.” (Townsel, supra, 63 Cal.4th at p. 64.) Then,
citing Chapman, the court held that the Attorney General failed to meet its burden of
“showing that the guilty verdict on the dissuading charge and the true finding on the
witness-killing special-circumstance allegation were ‘surely unattributable’ to the trial
court’s error in essentially instructing the jury not to consider the intellectual disability
evidence in relation to the charge and allegation.” (Townsel at p. 64.)
       Following Townsel, we apply the Chapman standard of review to the instructional
error in this case. The most likely explanation for the jury finding defendant not guilty of
attempted kidnapping but guilty of attempted false imprisonment is that the jury found
defendant lacked the specific intent to commit kidnapping because he was intoxicated.
Attempted false imprisonment, like attempted kidnapping, requires a specific intent. Had


       4
          Quoting the Ninth Circuit’s opinion in United States v. Escobar de Bright (9th
Cir. 1984) 742 F.2d 1196, 1201, defendant makes an alternative argument that the
instructional error committed in this case is per se reversible because “[t]he right to have
the jury instructed as to the defendant’s theory of the case is one of those rights ‘so basic
to a fair trial’ that failure to instruct where there is evidence to support the instruction can
never be considered harmless error.” Defendant cites no California case adopting the
Ninth Circuit’s approach, and decisions of lower federal courts on federal matters, while
persuasive, do not bind us. (People v. Federico (2011) 191 Cal.App.4th 1418, 1424, fn.
4.). We are, of course, bound by this state’s Supreme Court, which has held that
reviewing courts should apply prejudicial error review to the type of instructional error at
issue in this case. (Townsel, supra, 63 Cal.4th at p. 64.)


                                              12
the jury been permitted to consider evidence of intoxication in determining defendant’s
guilt for attempted false imprisonment, it is not clear beyond a reasonable doubt that they
would have convicted defendant of that charge anyway. (Chapman, supra, 386 U.S. at p.
24.) Even under Watson, supra, we would find the error prejudicial because it is
reasonably probable the jury would have acquitted defendant of attempted false
imprisonment had it considered evidence of his intoxication.
       The Attorney General asserts there is another explanation for the jury’s verdict
because “[t]he court had also instructed the jury on the defense of mistake with respect to
attempted kidnapping.” The Attorney General argues that “[a]s such, the jury could have
found that [defendant] was not guilty of attempted kidnapping if it found that [defendant]
‘believed Jane Doe was with him,’ thus negating the specific intent requirement.”
       This argument is not persuasive. The jury was instructed on mistake: “If the
defendant’s conduct would have been lawful under the facts as he believed them to be, he
did not commit the crime of attempted kidnapping. Therefore, if you find that the
defendant believed that Jane Doe was with him, he did not have the specific intent
required for the crime of attempted kidnapping.” This instruction apparently was based
on Andrea R.’s testimony that while defendant was following Andrea R. and Jane he said
“she thinks she’s for you, but she’s for me.” During his closing argument, the prosecutor
admitted to the jury that the instruction on mistake “[m]ight have puzzled you,” was
“kind of confusing,” and “really doesn’t have any application to this case.” The
prosecutor thus discredited the mistake theory. More to the point, even if the jurors
found defendant was mistaken about Jane being “for [him]” despite the “confusing”
instruction, there is nothing in the record to suggest the “mistake” could have been based
on anything other than defendant’s intoxication.
       The Attorney General also contends there was no prejudice because defense
counsel did not argue voluntary intoxication as a defense in her closing arguments. This
argument fails to look at instructional error in light of the entire record. The prosecutor
spent a significant amount of time addressing defendant’s intoxication during his closing
argument. But defendant’s primary defense in closing argument was that he was not the


                                             13
perpetrator, and to have focused on voluntary intoxication would have undermined this
defense. Nonetheless, as we have described, defendant offered evidence to support a
voluntary intoxication defense, and defense counsel referred to defendant’s alcoholism
and intoxication throughout the closing argument. She argued that defendant did not
confess to Officer Parker even though he was “vulnerable” and “drunk,” which made him
“a person who you can most easily [get] a confession out of.” She discussed the
character witnesses’ testimony that defendant was someone with a “long, long struggle
with alcohol” but who “wouldn’t hurt a fly.” And she reiterated that “[n]o matter how
drunk [defendant] gets, he would not do this.” On this record, defense counsel’s tactical
choice to discuss defendant’s alcohol use while focusing on the primary defense that
defendant was not the perpetrator is not a basis to conclude that voluntary intoxication
was not a viable defense to attempted false imprisonment.
                                     DISPOSITION
       The judgment of conviction is reversed.




                                                 _________________________
                                                 Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




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