                          In the Missouri Court of Appeals
                                  Eastern District
                                                 DIVISION TWO


    STATE OF MISSOURI,                                        )   No. ED106958
                                                              )
            Respondent,                                       )   Appeal from the Circuit Court of
                                                              )   St. Louis County
    vs.                                                       )
                                                              )   Honorable Gloria C. Reno
    SHAWN M. WALTHER,                                         )
                                                              )
            Appellant.                                        )   Filed: August 20, 2019

                                                    Introduction

           Shawn Walther (“Appellant”) appeals his convictions for first-degree robbery and armed

criminal action. He claims the trial court erred in refusing to instruct the jury on diminished

capacity. Finding no error, we affirm.

                                               Factual Background

           Appellant Shawn Walther appeals his convictions for first-degree robbery under

§ 569.020 and armed criminal action under § 571.015.1 On June 11, 2018, Appellant was tried by

a jury in the Circuit Court of St. Louis County. He was convicted and sentenced to 30 years in

the Missouri Department of Corrections. Appellant argues the trial court erred in refusing to

instruct the jury on the defense of diminished capacity.




1
    All statutory references are to RSMo 2016 unless otherwise indicated.
        The State adduced the following evidence at trial. Appellant approached a Circle K

convenience store clerk, outside on a cigarette break. When the clerk finished smoking,

Appellant followed her into the store and asked for all the money in the cash register. The clerk

thought Appellant was joking, but Appellant insisted he was serious and pointed a gun at her.

The clerk gave Appellant some of the money in the register and tried to close the drawer, but

Appellant said, “I want all of it.” The clerk gave Appellant all the money, and Appellant left. The

clerk called the police and described Appellant’s appearance. The store’s surveillance camera

captured Appellant’s entire interaction with the clerk. The clerk testified Appellant did not ask

her to call the police.

        Appellant fled the scene and approached a Metropolitan Sewer District worker near the

River Des Peres less than a mile away from the Circle K. Appellant claimed he had twisted his

ankle in the woods nearby and offered to pay the worker $10 for a ride across the river in his

work vehicle. The worker thought this was odd considering there were no woods nearby and said

he could lose his job if he gave Appellant a ride. The worker noticed a police car nearby and

suggested Appellant ask the police for help. Appellant then jumped down into a ditch.

        The worker summoned the police officer, who was coincidentally responding to the 911

call from the Circle K. The officer drew her weapon, approached Appellant in the ditch, and told

Appellant to raise his hands. Appellant was reluctant to move his hands out from under his

sweatshirt, but he eventually complied when a second police officer arrived. The officers

arrested Appellant without incident and found a .38 caliber pistol on the ground with a bullet in

the chamber. The officers found a large amount of cash in Appellant’s right front pocket. The

Circle K clerk identified Appellant as the robber at the scene of the arrest. Appellant then

apologized to the clerk.




                                                2
         At the police station, Appellant wrote a voluntary statement indicating he was drunk and

high on “ice” (methamphetamine) before the offense. Specifically, he “went crazy on the drugs,”

“kept craving the drugs,” and “contemplated how to get more money for the drugs.” Appellant

stated he took a gun from a friend and walked to the Circle K. Appellant waited for all the cars to

leave, entered the store, drew the gun, and demanded all the money in the register. He “took all

the money and walked off.”

         Before trial, the court ordered that Appellant be examined for competency to stand trial

and for “mental disease or defect.” The mental examiner, Dr. Bridget Graham, offered her expert

opinion Appellant did not have a mental disease or defect as defined in the Revised Statutes of

Missouri.2 Subsequently, Appellant filed a “notice of defense of diminished capacity” in which

he informed the State of his intent to argue he did not have the requisite mental state for the

crime of robbery. Relying on favorable portions of Dr. Graham’s testimony and BJC Behavioral

Health records, Appellant argued he acted with diminished capacity and his reason for robbing

the Circle K was to effectuate his own arrest as a means of suicide prevention.

         Appellant’s BJC Behavioral Health records indicated a physician had diagnosed him with

bipolar disorder two months before the Circle K robbery when he was incarcerated in St. Louis

County on an unrelated matter. Appellant failed to disclose to the trial court the diagnosing

physician retracted this diagnosis of bipolar disorder after continued observation of Appellant for

a year revealed “mild depressive symptoms” but “no … symptoms reaching the threshold of a

major psychiatric illness.” The diagnosing physician withdrew the diagnosis of bipolar disorder


2
  In 2017, the legislature modified § 490.065, enacting § 490.065.2(3)(b) which states: “In a criminal case, an expert
witness shall not state an opinion about whether the defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone[.]” Neither
party raised a statutory issue regarding Dr. Graham’s expert testimony. We decline to do so sua sponte because
“[i]ssues not raised on appeal are considered waived.” State v. Lucas, 452 S.W.3d 641, 644 (Mo. App. W.D. 2014)
(quoting Brunig v. Humburg, 957 S.W.2d 345, 348 (Mo. App. E.D. 1997)). Further, we decline to comment on how,
or whether, § 490.065.2(3)(b) would affect the admissibility of Dr. Graham’s expert testimony.


                                                          3
after Appellant had robbed the Circle K but approximately three years before this pretrial

hearing.

       In response, the State moved to preclude Appellant’s defense because “[b]ased on the

opinion of [Dr. Graham] relied on by the defense,” Appellant does not suffer from a legally

cognizable mental disease or defect that would support an instruction of diminished capacity.

       At a pretrial hearing on the State’s motion, Appellant argued he had successfully injected

diminished capacity because the BJC records and favorable portions of Dr. Graham’s testimony

showed Appellant still suffered from some mental disease or defect. At this hearing, Dr. Graham

testified she was aware of the BJC Behavioral Health records. She believed the original

diagnosis of bipolar disorder was incorrect and knew the diagnosing physician had retracted it.

Dr. Graham believed Appellant had a “borderline personality disorder with antisocial personality

traits” rather than a qualifying mental disease or defect. The trial court found Dr. Graham’s

testimony dispositive on whether Appellant suffered from mental disease or defect under

§ 552.010 and granted the State’s motion to preclude Appellant from proceeding with a

diminished-capacity defense.

       At trial, Appellant testified he was suicidal at the time of the offense and heard loud

thoughts telling him, “If you don’t get off the street soon, you’re going to end up really hurting

yourself or someone else, or something stupid is going to happen.” Appellant testified he took

his friend’s gun so he could commit suicide, but changed his mind and walked to the Circle K to

buy a drink. He also stated he was “afraid” of being arrested because he had just committed a

crime and left the store. Appellant testified he “freak[ed] out” because he did not have his phone

and could not call his girlfriend for help.




                                                4
       At the close of evidence, Appellant requested a mistrial based on diminished capacity and

competency. The trial court denied this motion for the same reason it granted the State’s motion

to preclude Appellant’s diminished-capacity defense. Appellant requested a diminished capacity

instruction patterned after MAI-CR3d 308.03. Just before the instructions conference, Appellant

made an offer of proof consisting of favorable portions of Dr. Graham’s testimony and the BJC

Behavioral Health records indicating a diagnosis of bipolar disorder. The State objected to

Appellant’s offer of proof, stating Dr. Graham concluded Appellant did not have a mental

disease or defect as required for the diminished capacity instruction and noting Dr. Graham had

specifically testified she considered all of the records, including the BJC Behavioral Health

records, in her determination. The trial court refused to instruct the jury on diminished capacity.

The jury convicted him on all counts. This appeal follows.

                        Preservation of Error and Standard of Review

       A defendant must specifically object to the trial court’s failure to give a proposed

instruction before the jury retires to deliberate. Rule 28.03; State v. Cooper, 215 S.W.3d 123, 125

(Mo. banc 2007); State v. Wright, 30 S.W.3d 906, 911 (Mo. App. E.D. 2000). For an allegation

of error to be preserved for appellate review, the error must be presented to or decided by the

trial court. State v. Davis, 348 S.W.3d 768, 770 (Mo. banc 2011). Here, Appellant timely

objected to, and preserved for review, the trial court’s refusal to instruct the jury on diminished

capacity. Therefore, we review for prejudice resulting from the trial court’s refusal to give

Appellant’s requested instruction. State v. Harding, 528 S.W.3d 362, 372 (Mo. App. E.D. 2017)

(citing Rule 28.02(f); State v. Cooper, 215 S.W.3d 123, 125 (Mo. banc 2007)).

       It is within the trial court’s discretion to determine whether to submit a tendered jury

instruction. State v. Johnson, 244 S.W.3d 144, 150 (Mo. 2008). In determining whether the trial




                                                5
court erred in refusing to submit the instruction, we view the evidence in the light most favorable

to Appellant. State v. Pulley, 356 S.W.3d 187, 192 (Mo. App. E.D. 2011) (citing State v.

Westfall, 75 S.W.3d 278, 280 (Mo. banc 2002)). “If the evidence tends to establish [Appellant’s]

theory, or supports finding differing conclusions, [Appellant] is entitled to an instruction on it.”

Id.

                                            Discussion

       Appellant claims the trial court prejudicially erred in refusing to instruct the jury on

diminished capacity because he presented sufficient evidence in his offer of proof to support the

existence of a mental disease or defect relevant to the existence of a required culpable mental

state. Appellant insists Dr. Graham was not the arbiter of whether he could pursue a defense of

diminished capacity and argues the trial court should have allowed the jury to decide whether he

suffered from a mental disease or defect that negated his mental culpability. Because Appellant

failed to present substantial evidence he suffered from a mental disease or defect as defined in

§ 552.010, the trial court did not err in refusing to instruct the jury on diminished capacity. State

v. Moore, 1 S.W.3d 586, 590 (Mo. App. E.D. 1999).

       Diminished capacity is a special negative defense which negates the existence of a

required culpable mental state. State v. Gill, 806 S.W.2d 48, 50 (Mo. App. W.D. 1991); State v.

Walkup, 220 S.W.3d 748, 754-55 (Mo. 2007). “Evidence of mental disease or defect negating a

culpable mental state is simply evidence that the defendant did not have the culpable mental state

that is an essential element of the crime.” State v. Knight, 355 S.W.3d 556, 559 (Mo. App. S.D.

2011) (quoting Walkup, 220 S.W.3d at 754-55). “Under the doctrine of diminished mental

capacity, the defendant remains fully responsible for his conduct but can be found guilty of only

those offenses, if any, of which he is mentally capable.” Gill, 806 S.W.2d at 50 (citing State v.




                                                 6
Shaw, 636 S.W.2d 667, 673 (Mo. 1982)). “A trial court does not err when it refuses to submit

this instruction if no evidence presented to the jury shows [the defendant] suffered from ‘mental

disease or defect’ as defined by § 552.010.” Moore, 1 S.W.3d at 590.

       The submission of a diminished-capacity instruction “is mandatory only if requested by

[the defendant] and if supported by evidence of mental disease or defect relevant to the existence

of a required culpable mental state.” Knight, 355 S.W.3d at 559 (quoting Moore, 1 S.W.3d at

590; Note 2 on Use of MAI-CR3d 308.03). “A defendant is presumed to be free from mental

disease or defect unless he presents substantial evidence to the contrary.” Moore, 1 S.W.3d at

590 (quoting § 552.030(6)). Section 552.010 defines “mental disease or defect” as “congenital

and traumatic mental conditions as well as disease,” excluding “abnormalit[ies] manifested only

by repeated criminal or otherwise antisocial conduct[,]” alcoholism without psychosis, or drug

abuse without psychosis. § 552.010 (emphasis added).

       The existence of a mental disease or defect must be linked to the existence of a required

culpable mental state. Note 2 on Use of MAI-CR3d 308.03; see State v. Lowe, 318 S.W.3d 812,

821 (Mo. App. W.D. 2010). Thus, “the existence of a mental disease or defect will not alone

suffice to diminish the defendant's criminal responsibility.” Nicklasson v. State, 105 S.W.3d 482,

484 (Mo. banc 2003). To warrant an instruction of diminished capacity, Appellant must (1)

produce substantial evidence of a mental disease or defect as defined by § 552.010 and (2)

establish a “causal link” between Appellant’s mental disease or defect and his inability to form

the requisite culpable mental state. See Knight, 355 S.W.3d at 560.

                       Substantial Evidence of Mental Disease or Defect

       Substantial evidence is “evidence putting a matter in issue.” State v. Whipple, 501 S.W.3d

507, 513 (Mo. App. E.D. 2016) (quoting State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003)).




                                                7
In determining whether there is substantial evidence to support giving a defendant’s requested

jury instruction, the trial court must consider the evidence in the light most favorable to the

defendant. State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992). The first issue before us is

whether Appellant produced evidence sufficient to overcome the statutory presumption of full

capacity.

           At the pretrial hearing on whether Appellant had presented substantial evidence to

demonstrate diminished capacity, Dr. Graham unequivocally testified Appellant “did not have a

mental disease or defect” under § 552.010 or MAI-CR3d 308.03. Specifically, based on her

observation of Appellant, Dr. Graham “ruled out the presence of primary psychiatric illness, like

bipolar disorder, and instead believed … the information [she] had gathered … was more

consistent with … borderline personality disorder with antisocial personality traits.” This was the

only competent expert evidence under oath. Although Appellant argues Dr. Graham was not the

arbiter of whether Appellant suffered from diminished capacity, “even in the absence of [Dr.

Graham’s] testimony … , the statutory presumption of sanity, § 552.030(6), ... standing alone, is

evidence sufficient to sustain the finding of the trier of fact on this issue.” State v. Bell, 798

S.W.2d 481, 487 (Mo. App. S.D. 1990) (quoting State v. Harris, 774 S.W.2d 487, 492 (Mo. App.

E.D. 1989)).

           Appellant argues his BJC Behavioral Health records indicate he had a diagnosis of

bipolar disorder at the time of the offense.3 But the diagnosis in these records was not substantial

evidence sufficient to compel the trial court to give the requested instruction because the

diagnosing physician withdrew this diagnosis. Notably, Dr. Graham considered these records in

determining Appellant did not suffer from a statutorily cognizable mental disease or defect.

           Appellant insists the jury should have resolved whether Appellant suffered from
3
    Appellant entered the BJC behavioral health records under the business records exception to hearsay, § 490.680.


                                                           8
diminished capacity because “it is the exclusive role of the jury to weigh the credibility of the

evidence and the trial court must instruct and give verdict directors to support this role.” State v.

McPike, 514 S.W.3d 86, 88 (Mo. App. E.D. 2017) (citing State v. Jackson, 433 S.W.3d 390, 399

(Mo. banc 2014)). Appellant argues his testimony and the BJC records created a conflict in the

evidence to be “resolved by a jury properly instructed” on diminished capacity.

       In McPike, we evaluated whether the trial court prejudicially erred in refusing to instruct

the jury on a claim-of-right defense, which is a special negative defense like diminished capacity.

Id. In assessing the prejudicial effect of the trial court’s refusal to instruct the jury on diminished

capacity, “[o]ur task is to determine only whether there is evidence in the record besides

Appellant's subjective belief” from which the jury could conclude Appellant suffered from a

mental disease or defect relevant to his culpable mental state. Id. at 89. The issue is whether

Appellant’s BJC records constitute substantial objective evidence that Appellant suffered from

diminished capacity beyond Appellant’s subjective belief he did. Because the diagnosing

physician withdrew his diagnosis of bipolar disorder, the BJC records do not corroborate or

strengthen Appellant’s subjective assertion he suffered from diminished capacity.

       Further, a trial court’s refusal to instruct the jury on a special negative defense does not

prejudice the defendant if the evidence “directly and irreconcilably contradicts” such a defense.

See McPike, 514 S.W.3d at 90. The only testifying medical expert unequivocally concluded

Appellant does not suffer from a mental disease or defect as defined in § 552.010. This testimony

directly and irreconcilably contradicts Appellant’s assertion he suffered from a mental disease or

defect that negated his mental culpability. Viewing the evidence in the light most favorable to

Appellant establishes, at best, Appellant suffered from a personality disorder and not from a

statutorily cognizable mental disease or defect.




                                                   9
       In Gill, the Western District held that the trial court did not err in refusing to instruct the

jury on diminished capacity because two experts testified the defendant, like Appellant, did not

suffer from a mental disease or defect under § 552.010. 806 S.W.2d at 50 (citing State v. Shaw,

636 S.W.2d 667, 673 (Mo. 1982)). The defendant argued he was still entitled to the instruction

because the experts’ testimony “did not foreclose the issue of diminished capacity.” Id. The court

found this argument to be incongruous with case law and the Notes on Use. Id. at 50-51. The

court found no prejudice from the trial court’s refusal to instruct the jury on diminished capacity

because the defendant, like Appellant, presented “no substantial evidence” of a mental disease or

defect as defined in § 552.010. Id. at 51.

                                Negation of Culpable Mental State

       Appellant fails to show a causal link between his evidence of mental disease or defect

and negation of his mental culpability. The evidence does not negate Appellant’s intent to

permanently deprive Circle K of money.

       A person commits first-degree robbery when he “forcibly steals property” and is armed

with, uses, or threatens to use, a deadly weapon. § 569.020(1). Under § 570.030, “[a] person

commits the crime of stealing if he or she appropriates property or services of another with the

purpose to deprive him or her thereof, either without his or her consent or by means of deceit or

coercion.” § 570.030(1) (emphasis added). Thus, to prove a defendant acted with a culpable

mental state for first-degree robbery under § 569.020, the State must prove beyond a reasonable

doubt he intended to permanently deprive the victim of property. State v. Escoe, 78 S.W.3d 170,

173 (Mo. App. W.D. 2002). Such intent is an essential element of the offense. Id.

       “Absent a confession by the actor that reveals his … intent, a person's mental state can be

known only through the person's actions.” State v. Miller, 220 S.W.3d 862, 868 (Mo. App. W.D.




                                                 10
2007) (quoting State v. Roberts, 948 S.W.2d 577, 589 (Mo. banc 1997)). “Evidence of a person's

conduct raises inferences that point toward or away from a conclusion that the person possessed

a culpable mental state.” Id. Although Appellant denied he intended to purposely deprive the

Circle K of money, Appellant’s actions and reasonable inferences therefrom indicate the

contrary.

       A defendant consummates all elements of the offense of first-degree robbery when he

gains control of stolen property, “even for a moment.” Escoe, 78 S.W.3d at 174 (citing State v.

Bradshaw, 766 S.W.2d 470, 473 (Mo. App. W.D. 1989)). Here, Appellant seized control of the

cash, exited the store, and hid from police. Appellant surrendered the cash only after he was

arrested. “Mere argument that [Appellant] lacked the required mental state is insufficient ‘when

the physical facts and [Appellant]’s conduct renders such [argument] unreasonable and

inconsistent with common experience.’” Lowe, 318 S.W.3d at 821 (quoting State v. Stidman, 259

S.W.3d 96, 104 (Mo. App. S.D. 2008)). The facts, viewed in the light most favorable to

Appellant, suggest Appellant intended to permanently deprive Circle K of the money.

       This case is distinguishable from Walkup, in which the defendant’s evidence of mental

disease or defect was relevant to the defendant’s mental culpability. In the defendant’s trial for

first-degree murder, the only issue for the jury was “whether [the defendant] had the requisite

state of mind – deliberation – which is an element of … first-degree murder.” Walkup, 220

S.W.3d at 751. The trial court excluded unequivocal expert testimony the defendant suffered

from bipolar disorder. Id. at 572. The Supreme Court held that exclusion of this testimony was

erroneous and prejudicial, and stated:

       [O]n the night of the murder, [Walkup] was very emotional, unstable, and
       changed from calm to anxious and back again many times. The excluded evidence
       went directly to the issue of Walkup's mental condition and its effect on his ability
       to deliberate. If the jury had heard [the expert] testimony, it presumably could



                                                11
       have drawn a connection between [the] testimony as to the effects of Walkup's
       bipolar condition on his state of mind and the behavior he exhibited at the time of
       the killing. If the jury had accepted the evidence as negating the culpable mental
       state of deliberation, the jury would have found him guilty of second-degree
       murder rather than first-degree murder. As it was, the jury deliberated for eight
       hours without any evidence from the defense. Id. at 758.

       Unlike in Walkup, no expert has testified Appellant suffered from diminished capacity at

the time of the crime. Here, the physical facts and Appellant’s conduct render Appellant’s theory

of diminished capacity unreasonable and inconsistent with common experience. Appellant’s

evidence does not negate Appellant’s intent to permanently deprive Circle K of money.

Appellant confessed to police he was craving methamphetamine and contemplating “how to get

more money for the drugs.” The evidence would not lead the jury to find that Appellant was

suffering from diminished capacity at the time of the offense. Rather, the evidence suggests

Appellant planned to rob the Circle K so he could buy more methamphetamine. Because

Appellant demanded and seized control of the money, exited the store, and attempted to evade

police, a fact-finder could not reasonably infer Appellant did not intend to keep the money.

       While Appellant’s alleged suicidal thoughts may have suggested he was likely to harm

himself, they did not render him less likely to form the culpable mental state for robbery. See

Miller, 220 S.W.3d at 868-69. In Miller, the defendant appealed his first-degree murder

conviction on the ground the trial court erred in excluding expert testimony he suffered from

diminished capacity due to suicidal ideation at the time of the murder. Id. at 867-68. The

defendant claimed he went to his estranged wife’s house to commit suicide in front of her, but

unexpectedly encountered her boyfriend and shot him in self-defense. Id. at 865-66. Although

the State was required to prove the defendant deliberated before the shooting, the court found

evidence of his suicidal ideation irrelevant as to his mental culpability for murder. Id. at 868-869.

The court reasoned the defendant’s suicidal nature merely suggested he was likely to harm



                                                 12
himself and was irrelevant as to his ability to deliberate about killing the victim. Id.

       Appellant failed to offer sufficient substantial evidence he suffered from diminished

capacity at the time of the crime. Gill, 806 S.W.2d at 50; Moore, 1 S.W.3d at 590; § 552.030(6).

Appellant failed to offer sufficient substantial evidence his alleged mental condition negated his

intent to deprive Circle K of its money, an element of the crime he was charged with. Miller, 220

S.W.3d at 868-69. Further, the facts and Appellant's conduct are inconsistent with his theory of

diminished capacity. Lowe, 318 S.W.3d at 821.

                                             Conclusion

       For the foregoing reasons, we find that the trial court did not err in refusing to instruct the

jury on diminished capacity. The trial court’s judgment is affirmed.




                                               _______________________________
                                               Philip M. Hess, Presiding Judge




Kurt S. Odenwald, J. and
Lisa P. Page, J. concur.




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