Appeal from the Circuit Court of the City of St. Louis. Hon. Charles D. Kitchin.
Robert E. Crist, Judge, Crandall, P.j., and Reinhard, J., concur.
The opinion of the court was delivered by: Crist
Defendant appeals from a jury conviction of second degree burglary, for which he was sentenced to fifteen years' imprisonment as a Class X offender. On appeal, Defendant asserts: (1) the trial court erred in refusing to give an instruction on involuntary intoxication and plainly erred in sustaining the State's motion in limine excluding any argument on this issue; (2) the trial court plainly erred in not declaring a mistrial sua sponte during the State's rebuttal argument; (3) the trial court plainly erred in submitting Instruction No. 4, patterned after MAI-CR3d 302.04; and (4) the motion court plainly erred in denying Defendant's Rule 29.15 motion. We affirm.
On the evening of July 20, 1991, Defendant was observed crawling out of a broken window of a Salvation Army store. When apprehended, Defendant also had clothes marked with Salvation Army tags. Defendant was arrested for burglary.
At trial, Defendant testified he was taking methadone as a treatment for his heroin addiction. Defendant's girlfriend testified that on the morning of July 20, 1991, at approximately 10 a.m., she drove Defendant to the West End Clinic to get his dosage of methadone. Defendant's brother also testified he saw Defendant around 5 p.m. on the day of the burglary. Defendant's brother characterized Defendant's behavior at this time as "very unusual." Defendant's brother stated Defendant asked to borrow some money. He handed Defendant some money and next observed Defendant standing in the middle of the street counting the money.
Defendant's mother testified she had observed Defendant's behavior on several occasions after he had taken methadone. She stated Defendant often acted "hyper" after he had been to the clinic to receive a dosage of methadone. On one occasion she saw Defendant vomit after receiving the methadone. Another time she observed Defendant break into a sweat that he claimed was caused by the methadone. At trial, Defendant requested the court instruct the jury on the defense of involuntary intoxication. The trial court denied this request.
In Point I, Defendant alleges the trial court erred in refusing his proffered instruction on involuntary intoxication and plainly erred in sustaining the State's motion in limine which precluded any argument on the issue of involuntary intoxication. Defendant alleges the trial court erred in refusing to give this instruction because he offered evidence he was involuntarily intoxicated at the time of the burglary. The involuntary intoxication defense is defined in § 562.076.1, RSMo 1986, which provides:
A person who is in an intoxicated or drugged condition whether from alcohol, drugs or other substance, is criminally responsible for conduct unless such condition is involuntarily produced and deprived him of the capacity to know or appreciate the nature, quality or wrongfulness of his conduct.
Defendant bears the burden of injecting the issue of an intoxicated or drugged condition. § 562.076.2. No evidence was presented at trial to indicate Defendant was intoxicated to the point he was unable to know or appreciate the nature, quality, or wrongfulness of his conduct at the time of the burglary. The court is required to instruct the jury on a defense only when substantial evidence to support the defense has been presented. See e.g., State v. Sproul, 786 S.W.2d 169, 173  (Mo. App. 1990); State v. Ehlers, 685 S.W.2d 942, 948  (Mo. App. 1985).
The only evidence about Defendant's mental state on the day of the burglary came from Defendant's brother and girlfriend. Defendant's brother, who saw Defendant three hours before the burglary, testified Defendant was acting very unusual and very sporadic. Defendant's girlfriend testified she observed "nothing unusual at all" about Defendant's behavior after he received his methadone dosage on the morning of the burglary. In fact, she entrusted Defendant with three young children and her car. This evidence is insufficient to meet Defendant's burden of injecting the issue of an intoxicated or drugged condition. State v. Gannaway, 649 S.W.2d 235, 238  (Mo. App. 1983).
Defendant also failed to establish his alleged intoxicated state was produced involuntarily. The instruction proffered by Defendant, based on MAI-CR3d 310.52, states:
A drugged condition of a person is involuntarily produced when it is brought by the introduction into his body of any substance which he does not know and has no reason to know has a tendency to cause such a drugged condition.
Defendant presented no evidence at trial indicating methadone was a substance he did not know or have reason to know caused a drugged condition. Defendant attempts to argue he was involuntarily intoxicated because he ingested methadone as part of the medically prescribed treatment for his heroin addiction. We disagree.
In State v. Bishop, the defendant attempted to argue his drugged condition was involuntarily produced because he was addicted to drugs. 632 S.W.2d 255, 256 (Mo. 1982). The Missouri Supreme Court rejected this argument stating the fact that defendant was addicted to drugs and took drugs to maintain this ...