Assault as The Intentional Infliction of Bodily Harm Is A Specific Intent Crime For Which Voluntary Intoxication is a Defense.

State v. Fleck, Minn.Ct.App., 4/26/2011.  Mr. Fleck went on a bender, drinking for “seven days straight.”  When his girlfriend, K.W., came home, Mr. Fleck stabbed her.  He then made several phone calls and then sat down to await the arrival of the police.  Mr. Fleck told the police that he had taken forty Serquel pills; shortly thereafter he passed out.  Officers took him to the hospital where his blood alcohol level registered .315.

The state charged him with second degree assault.  There are two ways that you can commit this crime:  act with intent to cause fear in another of immediate bodily harm or death; and intentionally inflict or attempt to inflict bodily harm upon another.  Minn.Stat. 609.222, subd 1.  Mr. Fleck relied on the defense of voluntary intoxication.  The state objected, saying that the later assault is a general intent crime for which voluntary intoxication is not a defense.  The trial court agreed, but instructed the jury, nonetheless, that voluntary intoxication was a defense to an act with intent etc. 

But, was Mr. Fleck entitled to an intoxication instruction on the form of assault defined as the intentional infliction of bodily harm upon another?  The answer depends on whether this form of assault is a specific intent crime.  It turns out that the answer is, yes.  Intent to harm makes this form of assault a specific intent crime.  In fact, the Minnesota Supreme Court had already said this was so, back in 1998.  State v. Edrozo, 578 N.W.2d 719 (Minn. 1998). 

Mr. Fleck had requested a voluntary intoxication instruction that would be applicable to both forms of assault.  When the trial court said it would not give that instruction for both forms of assault, Mr. Fleck made no further objections to the court’s instructions.  As a result, the state said that Mr. Fleck had failed to preserve the objection and thus the error had to be considered under a plain error analysis.  The appellate court rejects this contention.  Mr. Fleck asked for an instruction and didn’t get it.  He preserved the issue for review on appeal.

The jury had acquitted Mr. Fleck on the assault based on an act with intent to cause fear, etc.  The error in not extending the voluntary instruction to the other form of assault was prejudicial error.  Mr. Fleck gets a new trial.