The legislature amended § 939.42 in 2013 Wis. Act 307 to eliminate the defense of voluntary intoxication when the intoxication negated the existence of a requisite mental state, like intent or knowledge. But because the state has the burden of proving every element of an offense, including the mental state, there’s a due process argument that evidence of intoxication that might negate that element is relevant and admissible, despite the absence of a statutory defense of voluntary intoxication. (¶27 & n.4). If that’s so, then what, if anything, should the court tell the jury about how to use that evidence?
Wisconsin law isn’t clear whether the amendment of § 939.42 means evidence of voluntary intoxication is even admissible, but the court of appeals concludes it doesn’t need to clarify the law in this case. (¶¶27, 28). That’s because it is clear that voluntary intoxication is no longer an expressly recognized statutory defense, so at a minimum a defendant is not entitled—at least under § 939.42—to an instruction that the jury may consider evidence of voluntary intoxication in determining if the defendant had the requisite mental state. (¶28). Moreover, in this case, the judge admitted evidence of and argument about Ozodi’s intoxication, and then gave an instruction that voluntary intoxication is not a defense. (¶¶14-19). So the question is whether that instruction misstated the law, misled the jury, and denied him the right to a defense, as Ozodi claims.
The state proposed instructing the jury that a defendant’s voluntary intoxication “may be relevant evidence” but that it “is not a defense and cannot be used to show that the defendant lacked the necessary knowledge to commit the alleged offense or that the defendant did not intend to commit the alleged offense.” (¶9). That last partis the nub of the due process problem, though, and Ozodi objected to it; he argued the jury should be told what the evidence could be used to decide whether he acted with the required mental state. (¶10). The trial court agreed with Ozodi, but only to a point, and amended the last sentence to say simply that voluntary intoxication “is not by itself a defense.” (¶¶12-14).
A jury given that instruction could be forgiven for being uncertain why the intoxication evidence mattered or how it should be used, or for wondering whether intoxication is a defense when it is accompanied by something else, and if so, what that something else might be. Nonetheless, in the full context of the case, the court of appeals is confident the jury would have figured all that out:
¶30 …. The instruction that Ozodi’s voluntary intoxication was not “by itself” a defense did not create a presumption that Ozodi’s actions that followed were also voluntary. Rather, and to the contrary, the instruction counseled that the intoxication without more would not relieve Ozodi of the intent necessary to render his actions criminal, i.e., that the intoxication “by itself” did not excuse his behavior. Ozodi stood in the same shoes as a sober person because an intoxicated person can form intent, but, as discussed next [in the court’s opinion, not the instruction–Ed.], evidence of his intoxication could be and was considered to negate his intent. Importantly, the instruction did not mention intent or a mental state element in any way. People v. Stone, 471 P.3d 1148 (Co. Ct. App. 2020) (nothing in the instruction from which a juror could conclude that a defendant is criminally responsible for his conduct simply as a result of his voluntary intoxication).
¶31 The trial court’s additional instructions as well as the evidentiary rulings made clear that voluntary intoxication was relevant and the jury was to consider all the facts and circumstances, that the State had the burden of proof beyond a reasonable doubt on this element (instructions that Ozodi had no objection to), and that Ozodi was not precluded from attempting to factually establish and argue that his intoxicated state negated his ability to form the requisite intent to commit the crimes charged. See State v. Sanders, 2011 WI App 125, ¶13, 337 Wis. 2d 231, 806 N.W.2d 250 (“[J]ury instructions that, considering the ‘proceedings as a whole,’ adequately give to the jury the appropriate legal principles will be upheld even though they may not be phrased” with precision or elegance (citation omitted)).
¶32 We do not see a reasonable likelihood that a jury could be confused or led to believe by the instructions that it was not allowed to consider the evidence that Ozodi did not intend to commit the offenses—his intent was a focal point of the testimony and of the arguments on both sides at trial. ….
¶33 Not only did the trial court allow the jury to hear and consider voluntary intoxication testimony from Ozodi’s friend, a State lab expert, Ozodi himself, and other witnesses, counsel focused on the issue throughout the trial and in argument. Ozodi’s counsel forcefully argued to the jury about the connection between LSD and his intent and explained that the law allows the jury to consider whether voluntary intoxication negated his intent. Indeed, as explained by defense counsel in closing argument, while voluntary intoxication “itself is not a defense,” it was “relevant evidence.” “It is something you can consider in determining whether or not the [S]tate has proven to you beyond a reasonable doubt that [Ozodi] actually intended to have sexual contact. You don’t have to disregard that evidence.” The State’s arguments confirmed that position.