State v. Liaw

• Decision Date: 06 April 2016
• Docket Number: No. 27484.,27484.
• Citation: 878 N.W.2d 97
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jeremiah Badit LIAW, Defendant and Appellant.
• Court: South Dakota Supreme Court

878 N.W.2d 97

STATE of South Dakota, Plaintiff and Appellee,

v.Jeremiah Badit LIAW, Defendant and Appellant.

No. 27484.

Supreme Court of South Dakota.

Argued March 22, 2016.

Decided April 6, 2016.

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.

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.

[¶ 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?

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 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 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 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 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...