Dissenting.
The majority of our panel concludes that the district court properly refused to give jury instructions regarding intoxication as a defense to the specific intent element of the crime charged. The court justifies this conclusion by suggesting that the evidence would not support a finding that Mr. Phelps was intoxicated. I disagree. Substantial proof exists on the record to indicate that such an instruction was warranted, and, because I would remand on this issue alone, I dissent.
Although it is true that an instruction should not be given “if it lacks evidentiary support or is based on mere speculation”, United States v. Lavallie, 666 F.2d 1217, 1219 (8th Cir.1981), this court also applies the well-established principle of United States v. Fay, 668 F.2d 375 (8th Cir.1981), that when a criminal defendant makes a timely request for a jury instruction on a theory of defense, he is entitled to receive that instruction if it “‘is supported by evidence” ’ and “ ‘sets out a correct declaration of law.” ’ Id. at 377 (quoting United States v. Manning, 618 F.2d 45, 47-48 (8th Cir.1980)).
In Fay, the defendant was charged with assault with a dangerous weapon and the district court refused to give an instruction to the jury concerning intoxication as a theory of defense. On appeal, we reversed, citing evidence that: the defendant purchased beer and other liquor on several occasions in the hours leading up to the events for which he was convicted; he had been drinking for as much as 24 hours preceding the outbreak of violence at the victim’s house; and the defendant was “passed out” shortly before the crime. See Fay, 668 F.2d at 377-78. On these facts, we held that the evidence would “support” a finding that he was intoxicated and therefore lacked the specific intent necessary for conviction.
In contrast, in Hayes v. Lockhart, 852 F.2d 339 (8th Cir.1988), we determined that no instruction on intoxication was required because, on the facts of that case, there was minimal evidence that the defendant was impaired at the time of the crime. We did so based on evidence that: while the defendant *1059testified that he had been drinking all day, both of his parents testified that he did not appear to be intoxicated and that they detected no odor of alcohol on his breath; the defendant’s cousin testified that he did not appear to be intoxicated in the hours before the crime; and the officers that questioned the defendant all testified that they neither smelled alcohol on his breath, nor observed him to stagger or slur his words. See Id. at 345.
These cases, and others, indicate the obvious: intoxication instructions are fact specific. This court has required instructions to be given when the record reflects something more than minimal evidence of intoxication. At the very least, where the issue is controverted, where substantial evidence of drunkenness is present but yet must be balanced against some limited evidence to the contrary, such an issue is properly for the jury.
The record discloses the following proceedings and evidence. At the outset, the government began its case by arguing to the court that Mr. Phelps was intoxicated immediately after the alleged assault, noting that Phelps “was clearly under the influence of alcohol.” (Tr. at 11). As for the testimony of witnesses, both the victim, Ms. Keeler, and others who encountered Mr. Phelps testified either to their subjective belief that Phelps had been drinking or to objective indicia that would suggest intoxication. Ms. Keeler testified that she thought Phelps had been drinking prior to the assault. (Tr. at 37). One of Keeler’s children — the only other witnesses to the actual events charged — testified that, even as an seven-year old, he knew Phelps had been drinking. (Tr. at 93).
Dehna Bruguier, Phelps’ friend, saw him shortly after the incident. She testified that she thought he had been drinking. (Tr. at 125). Phelps was carrying a partially consumed 12-pack of beer and a bottle of whiskey that was as much as half finished. (Tr. at 124). Ms. Bruguier also testified that when Phelps arrived at her house he had an open bottle of beer, bloodshot eyes, and was behaving in a forward and aggressive manner. (Tr. at 124-28).
Officer Leaf, the responding and arresting officer, testified that Phelps had been “out all night drinking” prior to the assault and returned home mad. (Tr. at 243-44). According to officer Leaf, Phelps was “belligerent and cussed” when accosted immediately after the incident, and, in a bizarre sequence, when requested by officers to put his hands up, Phelps instead dropped his pants. (Tr. at 261-62).
Counterbalanced against this evidence, is the testimony of a single witness, Ms. Gre-gor. Ms. Gregor — Ms. Keeler’s mother— testified that when she saw Phelps briefly immediately before the incident, he was calm and it did not occur to her that he might have been drinking. (Tr. at 516).
The majority correctly points out that no witness testified directly that Phelps either staggered or slurred his words — implicitly suggesting that those signs are the true touchstones of drunkenness. Such markers are not conclusive however, and the absence of such symptoms ought not be adopted as a quick test for sobriety. Rather, I suggest that we must consider the totality of the circumstances because such a reckoning proves to be a more reliable guide.
In short, there was significant evidence presented to the jury from which it might determine that Phelps was intoxicated at the time of the incident. While the evidence of intoxication may not be overwhelming, such a weight of proof has never been required by the law of this circuit. Instead, the Fay standard requires a jury instruction on a theory of defense if the request for instruction is merely “supported by evidence and if it sets out a correct declaration of law.” Fay, 668 F.2d at 377 (emphasis added). In my view, Phelps presented ample evidence to support intoxication as a theory of defense. That intoxication may defeat specific intent is an indisputably correct declaration of law. See, e.g., Lavallie, 666 F.2d at 1219.
The defendant presented sufficient evidence for the court to instruct on this issue. Thus, the district court’s refusal to so instruct constitutes prejudicial error in my view, and on that basis I would remand the ease to the district court for a new trial.