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UNITED STATES of America, Plaintiff-Appellee,vs.Ronald Stephen SNEEZER, Defendant-Appellant. 900 F.2d 177 April 2, 1990.

Sneezer was indicted for aggravated sexual abuse, in violation of 18 U.S.C. Secs. 1153 and 2241(a). At his jury trial, the following evidence was presented. Sneezer stopped a seventeen-year-old girl walking along a highway and forced her into his car. After driving a few miles, Sneezer stopped and took his victim to a spot about 150 feet off the highway. There Sneezer threatened her, threw her on the ground, removed most of his clothing and climbed on top of her. He pulled away her clothing, and touched and bit her breast. She managed to escape. There is no question that Sneezer was intoxicated during the incident. At the close of evidence, the judge instructed the jury on attempted aggravated sexual abuse and attempted sexual abuse, but not on aggravated sexual abuse, the crime charged in the indictment. The judge refused Sneezer's requests for instructions on abusive sexual contact and on the defense of voluntary intoxication. Sneezer was convicted of attempted sexual abuse and sentenced to a prison term of five years.

The government concedes that Sneezer was intoxicated at the time of the incident. Voluntary intoxication may be a defense to a specific intent crime, but not a general intent crime. See United States v. Jim, 865 F.2d at 212; United States v. Echeverry, 759 F.2d 1451, 1454 (9th Cir.1985). Thus, our question is whether the crime of attempted sexual abuse requires proof of specific intent for which voluntary intoxication may provide a defense.

Applying the rule of Darby to this case, we conclude that the crime of which Sneezer was convicted, attempted sexual abuse, required proof of specific intent to accomplish the acts that constitute the completed crime. Because specific intent was an essential element, Sneezer was entitled to an instruction on his defense of voluntary intoxication.
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