¶1I respectfully dissent. Although I agree that the culpable mental state could have been properly conversed, I do not believe the proposed converse did so and was properly rejected by the trial court as it was confusing to read and was not in compliance with the MAI-CR instructions and applicable notes. Furthermore, Defendant was not prejudiced as he submitted, and the trial court gave, a proper converse.
¶2The majority opinion simply reaches the issue of whether it is proper to converse the element of the culpable mental state, but does not analyze whether the proposed converse, Instruction No. 5, was a proper converse. I believe that is because of the confusion created by Appellant’s point relied on. The point relied on states: “The trial court erred in not giving Appellant’s converse, Instruction No. A, which properly conversed the elements of the verdict director, including the culpable mental state of purposefully ‘arousing or gratifying the sexual desire of any person’ as required by Section 566.010, RSMo.”
¶3The State, in its response, only addresses the issue of whether the definition of “deviate sexual intercourse” is simply part of the definitional language among the elements or a separate element of the crime. The trial court did address that issue and properly rejected the instruction because it conversed too many things and it did not converse them in the same order that they were presented in the verdict direction. The basis of the court’s decision was not that the mental state was improperly injected into the converse instruction.
¶4The majority opinion apparently relies upon MAI-CR 3d 308.02, Notes on Use 4(D); however, I believe the appropriate paragraph is MAI-CR 3d 308.02, Notes on Use 4(E), entitled conversing more than one paragraph. The proposed converse clearly covered more than one paragraph of the verdict director and in so doing should have been numbered in the same manner as the verdict director. Defendant sought to converse the first two elements of the verdict director; however, he did so in a convoluted order. He gave partial facts from the first paragraph, “on or about the 6th day of December, 2002”; then gave the definition of the mental element in the second paragraph, “with the purpose of arousing or gratifying the sexual desire of any person”; returned to the first paragraph, “committed an act”; returned to the second paragraph, “constituting deviate sexual intercourse”; and finally, quoted language from the first paragraph, “involving the hand of [Defendant] and the genitals of [the victim].”
¶5I find State v. Matthews, 37 S.W.3d 847 (Mo.App. S.D.2001), to be instructive. In Matthews, defendant tendered a converse jury instruction; however, the proposed converse divided three separate facts from the first paragraph of the verdict director into three separate paragraphs. Id. at 851. This Court stated:
We note that MAI-CR3d 308.02 instructs to insert the element or elements *671to be covered in the converse instruction “using the language from the verdict director,” and refers the reader to the Notes on Use for examples. Notes on Use 4(B) states that when conversing one paragraph of the verdict director, the material that follows the introductory phrase of the converse, “must be taken from the verdict director.” In the instant case, Defendant sought to converse all of the material in paragraph First of [the verdict director], but the language contained in [the proposed converse] following the introductory phrase did not track that contained in paragraph “First” of the verdict director either in form or content. While there is no contention that the language used by Defendant in constructing [the converse] unfairly characterized the language from [the verdict director], the fact remains that the language in [the converse] was not “taken from [the verdict director]” as directed by Notes on Use 4(B). [The given converse], however, did utilize the same language, in one paragraph, just as it appeared in paragraph First of [the verdict director].
¶6This Court held that the proposed converse was not in proper form in that it was not in strict compliance with MAI-CR 3d 308.02 or its Notes on Use. Id. at 852. Even if an instruction was improperly denied, the prejudicial effect of the failure to give the instruction was to be judicially determined. Id.We noted that even if the defendant was correct that his proposed converse was consistent with MAI-CR 3d 308.02 and the Notes on Use, the defendant was not prejudiced by the failure to give the tendered instruction because a proper converse was given to the jury and the jury was, in fact, instructed under a converse that correctly declared the law. Id.
¶7Likewise, Defendant was not entitled to a converse instruction that was not in compliance with MAI. Although neither party addressed in its argument whether the actual proposed instruction was a proper converse, and, more importantly, whether Defendant was prejudiced by the denial of the proposed instruction, I would find that the proposed instruction was properly refused.
¶8After reviewing Appellant’s other points for plain error, I would affirm the judgment.