State v. Huber, 14085

• Decision Date: 21 March 1984
• Docket Number: No. 14085,14085
• Citation: 356 N.W.2d 468
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Ronald Carl HUBER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 468

356 N.W.2d 468

STATE of South Dakota, Plaintiff and Appellee, v. Ronald Carl HUBER, Defendant and Appellant.

No. 14085.

Supreme Court of South Dakota.

Considered on Briefs March 21, 1984.

Decided Sept. 26, 1984.

Mark Smith, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Bryce Flint of Jackley & Flint, Sturgis, for defendant and appellant.

HENDERSON, Justice.

This is an appeal from four convictions in Meade County, South Dakota, arising out of a high-speed chase of appellant's vehicle by law enforcement officers. We affirm.

State Trooper Oren Hindman, while on duty, was en route to his home at 3:00 a.m., the morning of May 15, 1982. He was driving a marked patrol car, proceeding on Ball Park Road, City of Sturgis, South Dakota. Officer Hindman noticed a vehicle, about one block ahead, which began to accelerate quite fast. The vehicle was not driving a straight line and weaved constantly, twice moving completely to the left side of the road. As the car was also exceeding the speed limit, Officer Hindman radioed the Sturgis Police that he would be attempting to stop the vehicle.

Upon seeing the vehicle run a stop sign, Officer Hindman activated the red lights atop his cruiser. As he approached within a half block, the vehicle accelerated. Officer Hindman then activated his siren, but the vehicle continued to accelerate. Simultaneously, a police cruiser approached in an on-coming intersection. The pursued vehicle swerved, slid sideways, and came to a stop. Officer Hindman reached the vehicle shortly after several other city police arrived on the scene. He recognized the driver of the automobile as appellant Ronald Carl Huber.

Appellant then exited his car, whereupon Officer Hindman and other officers attempted to handcuff him. Appellant jerked his hand, kicked, swore profusely, and threatened the officers. The officers then leaned appellant over the hood of a vehicle to facilitate handcuffing him, whereupon appellant continued to yell and swear. Officer Hindman then placed appellant under arrest for eluding a police vehicle.

Transportation of appellant to the jail, the officers decided, would be in a city patrol car. During the process of placing him in the car, while facing the officers in a sitting position, appellant again began to kick and swear. Officer Hindman was severely kicked in the face and chest. A leg restraint was finally placed on appellant's ankles to prevent any further incidents. He was then transported to the Meade County Jail whereupon he was also placed under arrest for driving while under the influence of alcohol and/or drugs.

A two-part information was filed on August 17, 1982, charging appellant with four offenses: I) driving while intoxicated, II) eluding a police vehicle, III) resisting arrest, and IV) aggravated assault. The second part charged appellant with a third offense D.W.I. He pleaded not guilty and not guilty by reason of mental illness to each offense. A jury trial was held and appellant was found guilty on each count of the information on December 15, 1982. On January 4, 1983, appellant pleaded guilty to the third offense D.W.I. charge. He was sentenced to two years in the South Dakota State Penitentiary under Count I, and one year in the Meade County Jail for each of Counts II and III, and four years in the State Penitentiary on Count IV, sentences to be served concurrently. Part two of the information is not a subject of this appeal.

Appellant's first claim of error rests upon the charge of aggravated assault pursuant to SDCL 22-18-1.1(3). ¹ The information charged in Count IV that appellant "did cause bodily injury to a law enforcement officer ...." Appellant objected to the wording of the information as failing to state a crime in that one of the essential elements of aggravated assault is that an individual "knowingly" cause bodily injury. The information was not corrected.

Appellant admits that such a defect may be cured at trial through the giving of jury instructions as to all the necessary elements of the offense. See State v. Larson, 294 N.W.2d 801 (S.D.1980); State v. Williams, 297 N.W.2d 491 (S.D.1980). However, he contends no correction was made in that the particular jury instructions also fail to set forth the necessary knowledge requirement as an essential element of the crime of aggravated assault of a police officer. ² Appellant claims the trial court's failure to instruct on this element was prejudicial error.

We would agree with appellant's claim of error were it not for the rule that " '[j]ury instructions are to be considered as a whole, and if the instructions when so read correctly state the law and inform the jury, they are sufficient.' " State v. Fox, 313 N.W.2d 38, 41 (S.D.1981). We do not dispute that the crime of aggravated assault under SDCL 22-18-1.1(3) requires the showing of an attempt to cause or the knowing causation of any bodily injury. State v. Feyereisen, 343 N.W.2d 384 (S.D.1984). As an essential element of the crime, the term "knowingly" should have been included in the jury instructions. Although jury instructions 24 and 25 fail to set out all of the elements of the offense, jury instruction 26 does discuss the particular intent required for a conviction under SDCL 22-18-1.1(3). That instruction reads in part:

In a crime such as that of which the Defendant is charged in Count IV of the information, there must exist a union or joint operation of act or conduct and certain specific intent.

In the crime of Aggravated Assault there must exist in the mind of the perpetrator the specific intent to cause bodily injury to Oren Hindman, unless such intent so exists that [sic] a crime is not committed.

Knowledge, in this instance, may be inferred from the statement that an individual must intend to cause bodily harm. The necessary intent element was adequately set out in this jury instruction and was "sufficient to correct the defect in the information." Larson, 294 N.W.2d at 802.

Appellant argues that the crimes of eluding a police vehicle under SDCL 32-33-18 ³ and resisting arrest under SDCL 22-11-4(1) ⁴ are specific intent crimes. He claims it was prejudicial error not to instruct the jury as to this fact. Appellant also requested an instruction on the doctrine of "diminished capacity" which may be invoked in determining whether an individual was capable of forming the necessary intent required for a "specific intent crime."

"Specific intent has been defined as 'meaning some intent in addition to the intent to do the physical act which the crime requires,' while general intent 'means an intent to do the physical act -- or, perhaps, recklessly doing the physical act -- which the crime requires.' " State v. Rash, 294 N.W.2d 416, 417 (S.D.1980). Relying upon the authority of the Michigan Court of Appeals in People v. Lerma, 66 Mich.App. 566, 569-70, 239 N.W.2d 424, 425-26 (1976), this Court further stated in Rash, 294 N.W.2d at 417:

[S]pecific intent crimes would be limited only to those crimes which are required to be committed either "purposefully" or "knowingly", while general intent crimes would encompass those crimes which can be committed either "recklessly" or "negligently". Thus, in order to commit a specific intent crime, an offender would have to subjectively desire or know that the prohibited result will occur, whereas in a general intent crime, the prohibited result need only be reasonably expected to follow from the offender's voluntary act, irrespective of any subjective desire to have accomplished such result.

From this definition, appellant argues we need only determine whether a crime must be committed either purposefully or knowingly, or whether it can be committed either recklessly or negligently. If the former, then it is a specific intent crime. Appellant contends that use of the term "intentionally" in both SDCL 32-33-18 and SDCL 22-11-4(1) indicates these are "specific intent" crimes. Therefore, the trial court erred in not giving an instruction regarding specific intent.

Confusion often seems to accompany any attempt to distinguish what is meant by the phrases "specific intent," and "general intent." The terms have different connotations in different contexts. A reading of the opinion in Lerma illustrates this confusion. In its attempt at defining these terms, the Michigan Court felt "[a] much more workable definition would center upon the several mental states set forth in the various proposed criminal codes." Lerma, 66 Mich.App. at 569, 239 N.W.2d at 425. Thus, the terms "specific" and "general" were analyzed with regard to the mental state requirements of "purposely," "knowingly," "recklessly," and "negligently."

However, these code terms stem from "the general notion that except for strict liability offenses some form of mental state is a prerequisite to guilt." LaFave & Scott, Handbook on Criminal Law Sec. 28, at 201 (1972). They are used to describe the "mens rea" or the mental state which must accompany an act (actus reus) in order for that act to constitute a crime. They are terms designating what might be called "actual intent," i.e., was the act voluntary or involuntary?

Use of the phrases "criminal intent" and "general criminal intent" in the broad sense of punishable blameworthiness, has caused some confusion when actual intention was the idea to be expressed. At times the phrase "specific intent" has been employed for this purpose, but actual intention can be expressed without the use of this phrase and it should be reserved for a more important meaning.

Perkins, Criminal Law at 762 (2nd ed. 1969) (footnote omitted).

Specific intent with regard to mental state means what is the "particular" intent, i.e., is the crime restricted to those who act purposely or does it include those who act only recklessly, etc.? The phrase "specific intent" has an entirely different connotation when used with reference to such...