State of Missouri, Respondent, v. Thomas Kinworthy, Appellant.

STATE OF MISSOURI, Respondent, v. THOMAS KINWORTHY, Appellant. ) ) ) ) ) ) ) ) ) ED112817

Appeal from the Circuit Court of the City of St. Louis The Honorable Elizabeth B. Hogan, Judge Thomas Kinworthy appeals the judgment convicting him of first-degree murder, first-degree assault of a law enforcement officer, second-degree assault, first-degree burglary, resisting arrest, and four counts of armed criminal action. Kinworthy claims the circuit court erred by excluding testimony and failing to redact exhibits. The circuit court's judgment is affirmed. Factual and Procedural Background On the evening of August 29, 2020, a homeowner ("Wife") investigated a loud noise behind her residence. Wife found an injured man ("Victim") in the alley who stated

2 he had been shot. Wife returned home and called 911. The dispatcher asked Wife to check on Victim, but when she returned, he was no longer outside. Meanwhile, Husband walked to the front of the house and found Kinworthy standing inside holding a handgun. Husband asked Kinworthy to leave, but he refused, stating, "things have gone too far." Kinworthy told Wife to end her phone call. Husband and Wife managed to escape through the backdoor. In the alley outside, Husband and Wife encountered two police officers responding to the 911 call. Officers Daniel Devasto and Tamarris Bohannon walked toward Husband and Wife's home when Kinworthy fired his gun. Officer Bohannon fell to the ground with a gunshot wound to his head. Officer Devasto reported there was an officer down, and all police officers in the vicinity responded to the scene. Officers extricated Officer Bohannon and took him to the hospital where he died from his injury. As more officers arrived at the scene, Kinworthy fired another shot, and Officer Orlando Bailey was struck in the leg. To apprehend Kinworthy, tactical police units set up a perimeter around the home and enlisted a hostage negotiator to build a rapport with Kinworthy. Kinworthy told the negotiator that he had "some problems in Florida." During the standoff, officers noticed lights being turned off and on, yelling, and gunshots fired within the house. After Kinworthy's continued refusal to leave the home, Officers fired multiple rounds of tear gas into the home. Eventually, officers entered the home and physically apprehended Kinworthy.

3 At trial, Kinworthy did not deny he committed the charged crimes. Rather, he asserted he was not guilty by reason of mental disease or defect ("NGRI") because he had schizoaffective disorder and was experiencing a psychotic episode at the time of the shootings. Both Kinworthy and the State presented evidence regarding his mental health. Kinworthy presented evidence from Dr. Patricia Zapf, a clinical forensic psychologist, who diagnosed Kinworthy with schizoaffective disorder, bipolar type. The State presented evidence from Dr. Rachel Springman, the director of forensic evaluation services at the St. Louis Forensic Treatment Center. Dr. Springman diagnosed Kinworth with antisocial and personality disorder, stimulant use disorder, and cannabis use disorder. Dr. Springman also testified that her examination suggested Kinworthy was malingering. Both experts testified regarding their methodology in reaching their diagnosis. The jury returned a verdict, finding Kinworthy guilty on all counts. The circuit court entered its judgment, consistent with the jury's verdict and sentenced Kinworthy to life without parole, life, and 107 years' imprisonment to run consecutively. Kinworthy appeals, raising three claims of evidentiary error. Standard of Review Circuit courts have "broad discretion to admit or exclude evidence during a criminal trial, and error occurs only when there is a clear abuse of this discretion." State v. Emery, 701 S.W.3d 585, 600 (Mo. banc 2024) (quoting State v. Wood, 580 S.W.3d 566, 574 (Mo. banc 2019)). If the circuit court's decision is "clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks

4 the sense of justice and indicates a lack of careful, deliberate consideration[,]" the court abused its discretion. State v. Jackson-Bey, 690 S.W.3d 181, 184 (Mo. banc 2024) (quoting State v. Carpenter, 605 S.W.3d 355, 359 (Mo. banc 2020)). This Court reviews the circuit court's decision "for prejudice, not mere error." State v. Minor, 648 S.W.3d 721, 733 (Mo. banc 2022) (quoting State v. Zink, 181 S.W.3d 66, 73 (Mo. banc 2005)). "This Court will reverse only if the alleged circuit court error was so prejudicial it deprived the defendant of a fair trial." Jackson-Bey, 690 S.W.3d at 184. Analysis Exhibit Redaction Kinworthy first claims that the circuit court erred by failing to redact two exhibits detailing criminal charges against him in Florida and his failure to appear in court on those charges. Specifically, the court admitted an indictment from Broward County, Florida charging Kinworthy with kidnapping and attempted sexual battery with slight force, and a bench warrant showing that Kinworthy failed to appear for a court date in the Florida case. Kinworthy did not object to the admission of the documents. Instead, he argued the specific charges should be redacted from the documents because they constituted evidence of unrelated prior bad acts. Kinworthy argues admission of the unredacted exhibits prejudiced him because they suggested he had a propensity to commit crime. Generally, evidence of prior bad acts is inadmissible to demonstrate a defendant's propensity to commit the presently charged crimes. State v. Fassero, 256 S.W.3d 109, 118 (Mo. banc 2008). "However, evidence of such misconduct is admissible 'to establish

5 motive, intent, the absence of mistake or accident, a common scheme or plan, or the identity of the alleged perpetrator.'" State v. Winfrey, 337 S.W.3d 1, 11 (Mo. banc 2011) (quoting State v. Davis, 211 S.W.3d 86, 88 (Mo. banc 2006)). To be admissible, the evidence must be both logically and legally relevant. Id. Evidence is logically relevant when it "has some legitimate tendency to establish the guilt of the accused for the charges for which he is on trial ...." Id. Evidence is legally relevant when "its probative value outweighs its prejudicial effect." Id. The State argues that the evidence was admitted, not to show a propensity to commit crimes, but to show that Kinworthy had a motive to shoot at the officers. This evidence was presented to counter Kinworthy's assertion he was experiencing a psychotic episode due to his schizoaffective disorder, which prevented him from knowing he was shooting at police officers. The State argued multiple potential motives from this evidence, including that Kinworthy had a motive to shoot at the officers to avoid extradition back to Florida to face the pending charges. "Wide latitude is given in the development of motive." State v. Young, 582 S.W.3d 84, 92 (Mo. App. 2019). Multiple Missouri courts have ruled that evidence nearly identical to the complained of evidence was admissible to establish motive. See State v. Oxford, 791 S.W.2d 396, 397-99 (Mo. banc 1990) (finding the defendant's escape from an Oklahoma prison after committing murder and serving consecutive twenty and sixty- five-year sentences was relevant to establish motive); State v. Mallett, 732 S.W.2d 527, 534-35 (Mo. banc 1987) (finding evidence of the defendant's prior, out-of-state aggravated robbery and probation violation was admissible to demonstrate a motive to

6 kill a law enforcement officer); State v. Blackman, 875 S.W.2d 122, 139-40 (Mo. App. 1994) (finding admission of a prior indictment charging the defendant with rape, kidnapping, and first-degree sexual assault as well as his conditions for release on bond "was probative on the issue of defendant's state of mind"). Kinworthy argues that this case is different because the State could have established motive even had the specific charges been redacted. But the serious nature of the charges lends probative force to the evidence. Arguably, an individual would have a stronger motive to commit the actions Kinworthy admitted to committing if the individual faced serious charges rather than minimal punishment. It is clear that the circuit court carefully balanced the possible prejudice of admitting the charges with the probative force of the evidence. The circuit court did not abuse its discretion in determining that the unredacted Florida records were admissible to show Kinworthy had a motive to shoot law enforcement officers and evade capture. Further, the circuit court instructed the jury that Kinworthy was "on trial only for the offenses charged." The jury also was instructed that it "may not find [Kinworthy] guilty only because you believe he may have been involved in or committed other offenses or bad acts in the past." "A jury is presumed to follow the circuit court's instructions." Minor, 648 S.W.3d at 731; State v. Naylor, 510 S.W.3d 855, 863 (Mo. banc 2017). The circuit court did not abuse its discretion in admitting this evidence. Exclusion of Redirect Examination Testimony Next, Kinworthy claims that the circuit court erred by excluding testimony from Dr. Zapf, explaining what would happen to Kinworthy if he were found NGRI.

7 Kinworthy argues he was prejudiced because excluding Dr. Zapf's testimony left the jury co nfused by what punishment he would face if he were found NGRI. Kinworthy's claim fails because he is unable to demonstrate prejudice. Kinworthy requested, and the jury was instructed on exactly what would happen to him if he were found NGRI. On every offense and lesser included offense, the jury was instructed: When a person is found not guilty by reason of mental disease or defect excluding responsibility, the court must order that person committed to the Director of the Department of Mental Health for custody and care in a state mental health or retardation facility. This person can be unconditionally released from commitment only if and when it is determined by the court that the person does not have, and in the reasonable future is not likely to have, a mental disease or defect rendering him dangerous to the safety of himself or others. This person can be conditionally released from such custody only if and when it is determined by a court that he is not likely to be dangerous to others while on conditional release. See Section 552.030.6, RSMo 2016; section 552.040.2, RSMo 2016; MAI-CR 4th 406.02. Kinworthy was not prejudiced by the exclusion of Dr. Zapf's testimony because the circuit court instructed the jury on the same information. The circuit court did not err excluding this evidence. Expert Testimony Finally, Kinworthy claims that the circuit court erred by not allowing Dr. Zapf to summarize a report from the State's expert, Dr. Springman. Kinworthy argues this prejudiced his defense because Dr. Zapf was not able to discuss errors in Dr. Springman's report that he was malingering and was not suffering from a mental disease or defect. At trial, Dr. Zapf testified she reviewed Dr. Springman's report regarding Kinworthy's mental health. Trial counsel then asked Dr. Zapf to "briefly summarize" Dr.

8 Springman's report. This question drew an objection on the basis that it was improper for a witness to comment on another witness's testimony prior to its introduction at trial. The circuit court sustained this objection, and Kinworthy's trial counsel then moved on to ask Dr. Zapf about her own opinions on whether Kinworthy was malingering. Even if this Court agreed the circuit court erred by not allowing Dr. Zapf to summarize Dr. Springman's opinion, Kinworthy failed to demonstrate any prejudice from the court's ruling. Kinworthy's argument in this court is not that Kinworthy was prejudiced because Dr. Zapf was unable to summarize the report. Any prejudice in line with what Kinworthy argues would only have come if Dr. Zapf was unable to discuss Dr. Springman's specific opinions and the bases therefore. But Kinworthy never asked Dr. Zapf about Dr. Springman's specific opinions. As a result, this Court is unable to assess how the circuit court might have ruled or any prejudice that resulted from those questions. To the extent that Kinworthy agues prejudice because he was unable to question Dr. Zapf about her impressions of Dr. Springman's opinions, trial counsel's failure to ask those questions or to make an offer of proof renders that argument unpreserved for review. To preserve a claim of excluded evidence, "the proponent must attempt to present the excluded evidence at trial, and if it remains excluded, make a sufficient offer of proof." State v. Michaud, 600 S.W.3d 757, 761 (Mo. banc 2019) (quoting State v. Hunt, 451 S.W.3d 251, 263 (Mo. banc 2014)). An offer of proof should demonstrate to the circuit court what the rejected evidence was, educate the circuit court regarding that evidence's admissibility, and allow the circuit court to consider it in the context of the

9 case. Id. at 761-62. "Offers of proof must show what the evidence will be, the purpose and object of the evidence, and each fact essential to establishing admissibility." Id. at 762 (quoting Hunt, 451 S.W.3d at 263). While "an expert witness may testify that he disagrees with the scientific conclusions reached by another expert witness," Kinworthy did not ask whether Dr. Zapf disagreed with Dr. Springman's conclusions. State v. Link, 25 S.W.3d 136, 144 (Mo. banc 2000). Had Kinworthy either asked these questions in the presence of the jury to see if they would draw a similar objection or made an offer of proof, this Court would be able to assess the propriety of the circuit court's rulings. Without that record, there is nothing for this Court to review. Additionally, Kinworthy is unable to demonstrate prejudice in excluding Dr. Zapf's testimony contradicting Dr. Springman's conclusion about malingering. Dr. Zapf testified about the indications of malingering, her assessment of Kinworthy, and her opinion that Kinworthy was truly suffering from a schizoaffective disorder. Kinworthy is unable to demonstrate prejudice on this basis. The circuit court did not abuse its discretion in excluding Dr. Zapf's summary testimony. Conclusion The judgment is affirmed. _____________________________________ John P. Torbitzky, Chief Judge All concur. Kathleen S. Hamilton, Judge, not participating.