State of Missouri v. Coty Jack Borst

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
Respondent, )
)
v. ) WD83910
)
COTY JACK BORST, ) FILED: February 1, 2022
Appellant. )
Appeal from the Circuit Court of Platte County
The Honorable James W. Van Amburg, Judge
Before Special Division: Alok Ahuja, P.J., and
Mark D. Pfeiffer and Thomas N. Chapman, JJ.
Following a jury trial in the Circuit Court of Platte County, Coty Borst was
convicted of second-degree murder and armed criminal action. Borst appeals. He
argues that there was a fatal variance between the murder offense for which he was
indicted, and the offense of which he was convicted. We reverse and remand for a
new trial.
Factual Background
On September 18, 2018, Coty Borst was indicted in the circuit court on three
counts: (1) murder in the second degree, in violation of § 565.021.1;1 (2) armed
criminal action in violation of § 571.015, for committing the murder with a firearm;
and (3) assault on a police animal, in violation of § 575.353. The murder charge was
based on the allegation that Borst “knowingly caused the death of Jacob Stowers by
1 Unless otherwise noted, statutory citations refer to the 2016 edition of the
Revised Statutes of Missouri, updated by the 2017 Supplement.
shooting him.” The jury acquitted Borst of the third count, and we do not discuss it
further.
The following evidence was adduced at trial.
On June 21, 2018, Borst went with Jacob Stowers and Stowers’ girlfriend,
Madison Sitzer, to help Sitzer pack up her house after she had been evicted. Both
Borst and Sitzer had been drinking, though Borst was not “noticeably intoxicated.”
On the way to Sitzer’s house, they stopped at a gas station to purchase liquor.
Once at Sitzer’s house, Sitzer became upset and decided she wanted to be
alone with Stowers. Sitzer yelled at Borst to leave, and Borst began arguing with
her. Stowers attempted to calm the two down. Eventually, Borst left Sitzer’s
house.
Sitzer and Stowers were sitting on Sitzer’s bed talking when Borst returned
to the house and entered the bedroom. Sitzer and Stowers stood up, facing one
another, when Sitzer heard the gun go off and then saw Stowers “hit the ground.”
Sitzer did not remember seeing a gun. Borst left the house again, and Sitzer ran to
a neighbor’s home to call 911.
When the police arrived at Sitzer’s home, Stowers was on the ground,
conscious but injured. Stowers was transported to the hospital, where he died. The
cause of death was a single gunshot wound to Stower’s left back, which struck his
aorta and caused “abundant internal hemorrhage.”
Detective Nancy Penrod interviewed Borst four or five hours after the
shooting. After Borst waived his Miranda2 rights, he “repeatedly” told Detective
Penrod that he had acted in self-defense. Borst explained that Stowers had said
something like “we have guns all over the place,” and then charged at Borst a few
minutes later. Borst also stated multiple times that Stowers may have had a gun
2 Miranda v. Arizona, 384 U.S. 436 (1966).
2
and may have shot at Borst first. Borst told Detective Penrod that he thought he
had shot Stowers in the leg, and thought, at worst, that Stowers’ leg was broken.
When the police told Borst that Stowers had died from the gunshot wound,
Detective Penrod testified that Borst was “[s]hocked and surprised.” A video
recording of Borst’s police interview was played for the jury.
Consistent with the indictment, the State advised venirepersons during voir
dire that Borst was accused of second-degree murder for “knowingly caus[ing] the
death of Jacob Stowers by shooting him.”
Borst’s attorney’s opening statement emphasized two lines of defense to the
murder charge: that Borst had acted in self-defense, and that he did not knowingly
cause Stowers’ death as charged in the indictment. Thus, counsel advised the jury:
The evidence will show in this alcohol infused world that [Borst]
thought [Stowers] was getting a gun and he takes his weapon out and
defends his person.
The evidence will show that [Stowers] charged at [Borst] and
one shot was fired. The evidence will show though that there was not
a kill-shot. It was not in a kill-zone.
The evidence will show that [Borst] gave a statement to police
and he repeatedly said that he believed he shot [Stowers] in the leg.
He repeatedly said that. “I wasn't going to kill him. I didn't want to
kill him. I shot him in the leg.” The evidence will show that these
parties were just feet away. The evidence will definitely show that had
a kill-shot been intended, it could have happened. The evidence will
show [Borst] thought he shot him in the leg and it turned out to be in
the lower back of the left side; not in the chest, not in the head. [Borst]
believed, according to the evidence that you will see, that he thought
the worst that had happened to his friend, . . . [was] that he was shot
in the leg, and he had, at worst, a broken leg.
The evidence will show that he was shocked to learn that Jacob
had died. The evidence will show that [Borst] did not inflict this injury
for any other reason other than what he thought was self-defense and
for other – no other reason than to protect himself. The evidence will
show that he did not believe that that injury would cause death.
3
Borst testified at trial that he had acted in self-defense. He testified Stowers
and Sitzer made a crude joke at his expense, and that Borst complained that they
were “constantly hating on [him.]” An argument ensued. Stowers eventually stood
up from where he was sitting with Sitzer and got within two to three feet of Borst
and made a statement about fighting him. Borst testified that he responded that he
did not want to fight Stowers but would defend himself if necessary. Borst testified
that he told Stowers that he had a gun, and that Stowers responded, “we’ve got
guns all over the place.” Stowers then walked away, saying “let me go get one.”
Borst testified the tension was “very high” at that point, and that he felt threatened.
Borst testified that, because he believed Stowers had left the room to get a
gun and might “actually hurt” him, Borst cocked his gun. Borst then came around
the corner with his gun raised at Stowers and Sitzer. Stowers turned to look at
Borst, and “he had kind of a look as if he was about to dash,” though he did not
actually charge at Borst. Borst then fired at Stowers’ leg.
Borst testified that “I shot Jacob in self-defense because I declined to fight
him and more than once and then he . . . said he was going to get a gun whenever I
declined to fight him. And that doesn't leave me much room to do anything. . . . I
shot Jacob to protect myself.” Borst testified that he ran out of the house after
shooting Stowers because he was scared that Stowers or Sitzer might shoot him.
Following Borst’s direct examination, the circuit court held an instruction
conference. The second paragraph of the State’s proposed verdict director for the
murder charge, Instruction Number 9, required that the jury find that “it was
[Borst’s] purpose to cause serious physical injury to Jacob Stowers.” Borst objected
to this language, and asked that the court instead instruct the jury that it must find
that Borst “knew or was aware that his conduct was practically certain to cause the
death of Jacob Stowers,” consistent with the indictment. The circuit court overruled
Borst’s objection and submitted the instruction as proposed by the State.
4
Following the instruction conference, Borst concluded his testimony, and the
defense rested.
In its closing argument, the State argued that Borst had effectively conceded
the second element of second-degree murder in his testimony – namely, that he had
shot Stowers with the purpose of causing serious physical injury. Thus, reviewing
the verdict director with the jury, the State argued:
Second, that it was the defendant's purpose to cause serious
physical injury. Remember when I asked the defendant, was it your
purpose to cause serious physical injury? Yes. Was it your purpose to
shoot Jacob? Yes.
And he knew that even if shooting in the leg, was serious
physical injury, because I asked him. I said, “Even if you shoot him in
the leg, that's serious physical injury.” Yes. His purpose was to cause
serious physical injury.
It doesn't matter if he tried to aim for the leg or not. He
intended to cause serious physical injury and he did. He told you right
there a few minutes ago.
Remember, he's a very thorough person. A shot to the leg is
serious physical injury. He confessed to this element on the stand. He
made your job easy. He told you exactly what he was doing.
The jury convicted Borst of murder in the second degree and armed criminal
action. Borst was sentenced to terms of imprisonment of 30 years for murder, and
15 years for armed criminal action, with the sentences ordered to run consecutively.
Borst appeals.
Discussion
In his sole Point on appeal, Borst argues that his rights to due process and to
a fair trial were violated when he was indicted for committing murder by knowingly
causing Stowers’ death, but the jury was instructed that it could convict him if it
found that he acted with the purpose of causing Stowers serious physical injury.
5
I.
The State argues that Borst’s instructional-error claim was not preserved in
the circuit court, and that Borst is accordingly entitled only to plain-error review.
We disagree. To preserve a claim of instructional error, counsel must make a
“specific objection[ ],” “stating distinctly the matter objected to and the grounds of
the objection.” Rule 28.03. The Missouri Supreme Court has explained that
“[o]ur rules for preservation of error for review are applied, not to
enable the court to avoid the task of review, nor to make preservation
of error difficult for the appellant, but, to enable the court – the trial
court first, then the appellate court – to define the precise claim made
by the defendant.”
State v. Amick, 462 S.W.3d 413, 415 (Mo. 2015) (quoting State v. Pointer, 887
S.W.2d 652, 654 (Mo. App. W.D. 1994)).
Thus, where a defendant's objection “plainly and unequivocally”
inform[s] the trial court of the defendant's position that a particular
decision or action of the court was error for a particular reason[,] . . .
the defendant need not cite in his objection or motion for a new trial
the specific rule or statute at issue.
State v. Johnson, 513 S.W.3d 360, 364 n.2 (Mo. App. E.D. 2016) (citing Amick, 462
S.W.3d at 415).
In Amick the Supreme Court held that a defendant had preserved his claim
that the substitution of an alternate juror during the course of the jury’s
deliberations violated § 494.485, even though defense counsel did not cite the
statute in his objection at trial. The Court explained that “trial judges are
presumed to know the law and to apply it in making their decisions. This
presumption, in addition to Mr. Amick's timely and specific objection to the precise
issue of the propriety of substituting alternate Juror 14 for Juror 12 after the jury
had commenced deliberations, is sufficient to preserve the issue for appeal.” 462
S.W.3d at 415 (citations omitted). Similarly, the Eastern District held in Johnson
that the defendant preserved his claim that the State had failed to timely disclose
6
discovery materials, even though the defendant’s trial objection failed to cite the
rule requiring timely disclosure. 513 S.W.3d at 364 n.2; see also, e.g., State v. Irwin,
592 S.W.3d 96, 106-07 (Mo. App. E.D. 2019) (defendant preserved his argument
that the reading of an investigator’s prior testimony at trial violated the
Confrontation Clause, where counsel objected that the investigator was available to
testify by videoconference, and stated that “I think it’s important for the jury to see
how she testifies”); State v. Voss, 488 S.W.3d 97, 116 n.14 (Mo. App. E.D. 2016)
(hearsay objection to penalty-phase testimony concerning other acts of misconduct
was sufficient to preserve the defendant’s claim that the State failed to prove the
prior misconduct by a preponderance of the evidence).
In this case, Borst’s counsel specifically objected to the language of the second
paragraph of the verdict-directing instruction for second-degree murder, which
hypothesized the state-of-mind element. Counsel advised the court that the
instruction ultimately given changed the mental state from a requirement that
Borst knowingly caused Stowers’ death, to merely requiring that Borst have acted
with the purpose of causing Stowers serious physical injury. While Borst may not
have specifically invoked the variance doctrine by name, he advised the trial court:
that the State had originally proposed to submit the case on the basis that Borst
“knew or was aware that his conduct was practically certain to cause the death of
Jacob Stowers”; that the State was now “asking for a different instruction,” under
which the jury would only be required to find “that the Defendant purposely caused
serious physical injury to Jacob Stowers”; and that Borst “would ask for the original
Instruction submitted by the State be given rather than the one that is now being
proposed,” because the original instruction “would be the proper instruction on that
second element.” Borst’s trial objection was sufficient to advise the circuit court,
and the State, of the error he now challenges, and the basis for his claim of error.
7
Borst reasserted the same objection in his motion for a new trial. The claim was
adequately preserved for our review.
II.
A.
It is a fundamental principle of due process that a criminal defendant must
be given notice of the charges against him, so that he can have a meaningful
opportunity to prepare a defense.
No principle of procedural due process is more clearly
established than that notice of the specific charge, and a chance to be
heard in a trial of the issues raised by that charge, if desired, are
among the constitutional rights of every accused in a criminal
proceeding in all courts, state or federal.
Cole v. Arkansas, 333 U.S. 196, 201 (1948) (citation omitted). “The purpose of an
indictment is to provide due process notice to the accused of the charges pending
against him so that he may prepare an adequate defense.” State v. Gheen, 41
S.W.3d 598, 602 (Mo. App. W.D. 2001) (citation omitted).
Consistent with due-process notice principles, the Missouri Supreme Court
has held that “[o]ne cannot be charged with one offense, or with one form of an
offense, and convicted of another.” State v. White, 431 S.W.2d 182, 186 (Mo. 1968);
accord State v. Lee, 841 S.W.2d 648, 650 (Mo. 1992). “[W]hen a crime may be
committed by any of several methods, . . . the method or methods submitted in the
verdict directing instruction must be among those alleged in the information.” Lee,
841 S.W.2d at 650 (internal quotation marks omitted; citing State v. Shepard, 442
S.W.2d 58, 60 (Mo. 1969), and State v. Lusk, 452 S.W.2d 219, 223 (Mo. 1970)). The
purpose of these rules is “to foster and protect the primary purpose of the
information, that of providing notice to the accused so that the accused may prepare
an adequate defense against the charges brought.” Id.8
To constitute reversible error, a variance between a charging instrument and
a verdict-directing instruction must be “fatal,” or, in other words, both “material”
and “prejudicial.” State v. Tillman, 289 S.W.3d 282, 292 (Mo. App. W.D. 2009).
“‘Variances are material when they affect whether the accused received adequate
notice,’” or whether “the information reasonably inform[ed] defendant of the
evidence which will be presented at trial.” State v. Glass, 136 S.W.3d 496, 520 (Mo.
2004) (quoting State v. Whitfield, 939 S.W.2d 361, 366 (Mo. 1997)); State v. Jones,
930 S.W.2d 453, 455 (Mo. App. E.D. 1996) (citation omitted). “[V]ariances are
prejudicial when they affect the defendant's ability to defend against the charges.”
Glass, 136 S.W.3d at 520 (citation omitted). If it can be said that the defendant
“would have been better able to defend had the information contained the [same]
phrase” as the verdict director, then the defendant is entitled to relief on account of
a variance. Tillman, 289 S.W.3d at 292 (citation omitted). A material variance
which “mislead[s] the defendant” in preparing his defense is fatal. White, 431
S.W.2d at 186.
B.
A variance occurred in this case, because Borst was charged with one form or
method of committing second-degree murder, but the jury convicted him of
committing a different form or method. There are two types of murder in the
second degree: “conventional” and felony murder. § 565.021.1. “Conventional”
second-degree murder can be committed in two distinct ways: either the defendant
“[k]nowingly causes the death of another person”; or, “with the purpose of causing
serious physical injury to another person, [the defendant] causes the death of
another person.” § 565.021.1(1). While both forms of conventional second-degree
murder require the defendant to cause the death of another person, they require
that the defendant have acted for different reasons. The first form of conventional
second-degree murder requires the defendant to be “aware that his . . . conduct is
9
practically certain to cause” the death of another person. See § 556.061(31)(b)
(definingly “knowingly”). Under the second alternative, it must be the defendant’s
“conscious object” to cause serious physical injury. See § 556.061(41) (defining
“purposely”).
The alternative states of mind which can support a conviction for
conventional second-degree murder constitute fundamentally different forms of, or
methods of committing, the underlying offense. If one form or method is charged, a
different form or method cannot be submitted to the jury. The Missouri Supreme
Court held that a similar variance in state-of-mind requirements required reversal
in State v. Shepard, 442 S.W.2d 58 (Mo. 1969). In Shepard, the defendant was
convicted of attempted second-degree burglary. Id. at 59. The defendant was
charged by information with unlawfully entering a service station “with intent to
steal.” Id. The verdict-directing instruction allowed the jury to convict the
defendant, however, if it found that he unlawfully entered “with intent then and
there to commit some felony, or any stealing therein.” Id. The Supreme Court held
that the instruction’s expansion of the culpable state of mind, to include entry with
an intent “to commit some felony,” constituted a fatal variance which required the
reversal of the defendant’s conviction.
The offense of burglary, second degree, insofar as the essential
element of intent is concerned, may be committed in two ways; that is,
by an intent to steal or by an intent to commit any other crime in the
building broken and entered. It has long been the rule that when a
crime may be committed by any of several methods, the information
must charge one or more of the methods, and the method or methods
submitted in the verdict directing instruction must be among those
alleged in the information . . . . In this case, the submission clearly
authorized a finding of guilty if the jury found an intent to commit
‘some felony’ other than stealing or an intent to steal. . . . [T]here was
no charge in the information of an intent to commit ‘some felony’ other
than to steal . . . . Therefore, the jury was authorized to find defendant
guilty on a submission not alleged in the information . . . .
Id. at 60 (citations omitted).
10
Similarly, in State v. Holmsley, 554 S.W.3d 406 (Mo. 2018), the Missouri
Supreme Court reversed a defendant’s convictions of several sexual offenses, where
the State suggested to the jury in closing argument that the defendant may have
acted for the purpose of sexual gratification, even though he was charged with
committing the relevant acts for the purpose of terrorizing the victim. Although the
circuit court sustained the defendant’s objection to the improper argument, it
refused to give the jury a curative instruction. The Supreme Court held that in
these circumstances reversal was required, because “[b]y failing to give a curative
instruction, the trial court . . . permitted the jury to convict Mr. Holmsley on a basis
for which he was not charged with committing the offenses.” Id. at 414; see also,
e.g., State v. Cruz-Basurto, 581 S.W.3d 51, 56 (Mo. App. W.D. 2019) (although
finding no prejudicial error, noting a variance between the information, which
charged the defendant with engaging in sexual acts “for the purpose of arousing or
gratifying the sexual desire of the defendant,” and the verdict director, which stated
that defendant could be convicted if he acted “for the purpose of arousing or
gratifying the sexual desire of any person” (emphasis added)).
A variance existed in this case between the manner in which Borst was
charged, and the basis on which he was convicted. The grand jury indicted Borst of
second-degree murder based on the allegation that he “knowingly caused the death
of Jacob Stowers by shooting him.” The State proceeded to trial on that indictment,
and informed the jury venire that Borst had been charged with “knowingly
caus[ing] the death of Jacob Stowers by shooting him.” After the State rested and
Borst gave his direct testimony, however, the State submitted a verdict directing
instruction for second-degree murder which changed the mental element of the
offense. Rather than requiring the jury to find that Borst shot Stowers with the
awareness that his actions were practically certain to cause Stowers’ death, the
State’s newly proposed instruction required the jury to find only that “it was the
11
defendant’s purpose to cause serious physical injury to Jacob Stowers.” Over
Borst’s objection, the State’s revised proposal was submitted to the jury.
C.
The question remains whether the variance between the indictment and
verdict director in this case was fatal – meaning, both material and prejudicial.
Materiality relates to whether Borst received adequate notice of the charges against
him. The Supreme Court has found that a variance in the method by which an
offense is committed between indictment and instruction “affects whether the
appellant received adequate notice from the information.” State v. Lee, 841 S.W.2d
648, 650 (Mo. 1992). Lee was charged with first-degree robbery, in violation of
§ 569.020.1, RSMo 1986, which stated that:
A person commits the crime of robbery in the first degree when he
forcibly steals property and in the course thereof he, or another
participant in the crime,
(1) Causes serious physical injury to any person; or
(2) Is armed with a deadly weapon[.]
The Supreme Court found that a material variance existed when the information
charged Lee with committing first-degree robbery while “armed with a deadly
weapon,” but he was convicted of first-degree robbery which “cause[d] serious
physical injury” to the victim. Lee, 841 S.W.2d at 650. The variance here similarly
involved a charge of one method of second-degree murder and the conviction of
another; the variance was thus “material.”
The State argues that § 565.021.3 gave Borst notice that the State may seek
to convict him based on a different mental state. Section 565.021.3 provides that,
“in any charge of murder in the second degree, the jury shall be instructed on . . .
any and all of the subdivisions in subsection 1 of this section which are supported
by the evidence and requested by one of the parties or the court.” It is not at all
clear that § 565.021.3 is even applicable in this context, however. Section 565.021.3
12
authorizes the submission of a second-degree murder charge under “any and all of
the subdivisions in subsection 1.” The two subdivisions of § 565.021.1 (subdivisions
(1) and (2)) describe conventional and felony second-degree murder. The two
alternative states of mind for conventional second-degree murder (knowingly
causing death, versus a purpose to cause serious physical injury) are stated in the
same subdivision: § 565.021.1(1). We question whether the statutory authorization
to submit under “any and all of the subdivisions in subsection 1” gives the State the
prerogative to submit a different mental state for conventional second-degree
murder, varying from the mental state charged in the relevant charging
instrument. A natural reading of § 565.021.3 is that it is intended to permit the
submission of conventional second-degree murder where only felony second-degree
murder is charged, or vice versa, but that it does not authorize the unrestricted
substitution of one form of conventional second-degree murder for another
whenever the State or the court requests it. This is particularly true given that
“[t]he rule of lenity requires that criminal statutes be strictly construed against the
State.” State v. Knox, 604 S.W.3d 316, 320 (Mo. 2020) (citing State v. Salazar, 236
S.W.3d 644, 646 (Mo. 2007)).
Even if § 565.021.3 authorized the submission of either of the alternative
mental states for conventional second-degree murder, this would not do away with
constitutional due-process notice requirements. In State v. Hall, 956 S.W.2d 427(Mo. App. E.D. 1997), this Court specifically held that § 565.021.3 does not itself
satisfy due-process notice requirements. Hall held that a circuit court had erred by
submitting felony murder to the jury when the defendant had been charged
originally with only conventional first-degree murder, and had not been charged
with any underlying felony. The Court explained:
Although the statute is broadly worded, it could not do away
with the constitutional right that an accused has to demand “the
13
nature and cause of the accusation.” Article 1, section 18(a)
Constitution of Missouri . . . .
...
. . . [T]o satisfy the constitutional right of a defendant to know
the nature and cause of the accusation made, as well as to enable the
defendant to make his defense, the committee [on Pattern Criminal
Charges and Instructions] drafted, and the Missouri Supreme Court
approved, Notes on Use 2 to MACH–CR 13.02, the pattern charge for
first degree murder. That note states:
If the state intends to submit murder in the second
degree-felony under the provisions of Section 565.021.1(2),
RSMo Supp. 1984, then in order “to furnish the accused with
such a description of the charge against him as will enable him
to make his defense,” State v. Mace, 357 S.W.2d 923, 925
(Mo.1962), it will be necessary to add the following to this
charge after the word “him” by deleting the “.” and adding a
comma in its place:
and defendant is further given notice that should the
state submit murder in the second degree-felony under
Section 565.021.1(2), RSMo, it will be based on the
(immediate flight from the) (attempted) perpetration of
the class __ felony of _____ under Section _____, RSMo
against [name of victim].
An identical note 2 appears in MACH–CR 13.04, the pattern charge for
conventional second degree murder. Further, the pattern instruction
for felony murder, MACH–CR 13.06, requires the specific identification
of each underlying felony. Notes on Use 2 to MACH–CR 13.06.
Returning to the facts before us, neither the original indictment
nor the substitute information in lieu of indictment gave defendant
any notice that the State was going to submit any felony murder, much
less one based on robbery. Rather, such notice was first given at the
virtual close of the State's case, some eight days after the trial
commenced.
. . . Here, at the time of the amendment, no notice of any
underlying felony had been given. After the amendment, he was first
given notice of the underlying felony of first degree robbery.
Defendant was deprived of his right to prepare a defense to
felony murder based on the underlying felony of first degree robbery.
The State did not give him the notice he was constitutionally entitled
to. He timely objected and his objection should have been sustained.
14
State v. Hall, 956 S.W.2d at 429–30 (other citations omitted); see also State v.
Hendren, 524 S.W.3d 76, 82-83 (Mo. App. W.D. 2017) (distinguishing Hall and
finding that the defendant had adequate notice of a possible felony-murder
submission based on § 565.021.3, and because “the same charging instrument which
charged Hendren with second-degree murder also charged him with first-degree
burglary, the underlying felony which ultimately supported his conviction for felony
murder”); State v. Kohser, 46 S.W.3d 108, 112 (Mo. App. S.D. 2001) (despite the
authorization of § 565.021.3 to submit second-degree murder under all subdivisions
of § 565.021.1, “notice of the possibility of such a submission could only be
meaningful for an accused if the notice came before trial so the accused could
prepare” a defense).
Note on Use 8 to MAI-CR4th 414.06 similarly provides that, despite
§ 565.021.3, “murder in the second degree–felony cannot be submitted as a lesser
degree offense to first degree murder, or as an alternative form of murder in the
second degree–conventional, unless proper notice has been given, or unless such is
requested by the defendant.”
Notwithstanding § 565.021.3, the State was required to give Borst adequate
notice that it intended to submit an instruction that Borst committed second-degree
murder because he acted with the “purpose to cause serious physical injury” to
Jacob Stowers. To be adequate, notice was required before trial commenced, so that
Borst would have an adequate opportunity to prepare his defense. Because Borst
was deprived of such notice, the variance between the indictment and Instruction
Number 9 was material.
D.
The variance between the manner in which second-degree murder was
charged, and the manner in which it was submitted to the jury, was also prejudicial.
Prejudice arises when a variance affects the defendant’s ability to prepare an
15
adequate defense. See Lee, 841 S.W.2d at 650. On the other hand, a material
variance is not prejudicial when the “defense at trial, if believed by the jury, was
adequate to disprove the method submitted in the [indictment] and the method
submitted in the instruction.” Id. at 651.
Borst’s claim of self-defense would have been adequate to disprove both
methods of conventional second-degree murder. But Borst’s other principal defense
was that he did not knowingly cause Stowers’ death, because he did not intend to
kill Stowers, but intentionally shot him in the leg merely to wound him, and to
deter Stowers from attacking Borst. Borst’s “not a kill-shot” defense hinged on the
specific manner in which the State had charged the mens rea element of second-
degree murder. This defense was completely inadequate to defend against the new
allegation that Borst had acted with a purpose to cause serious physical injury.
Borst’s testimony that he intended only to shoot Stowers in the leg would have
defeated the indictment’s allegation that he had “knowingly caused the death of
Jacob Stowers.” Yet that same testimony conceded the mental state submitted to
the jury – a point which the State emphasized in closing argument. Changing the
mens rea element of second-degree murder, after almost the entirety of the evidence
had been presented, prevented Borst from preparing an adequate defense against
the crime of which he was ultimately convicted.
The State argues that Borst cannot demonstrate prejudice, because he was
not entitled to defend against the mental-state element of conventional second-
degree murder, by arguing that he had a different culpable mental state than the
one that was charged. The State relies on State v. Tillman, 289 S.W.3d 282 (Mo.
App. W.D. 2009), in which we held that the defendant “could not have avoided [his]
conviction” by arguing he intentionally killed the victim through other means than
those with which he was charged, because “the cause of the victim’s death is not an
element of murder in the second degree.” 289 S.W.3d at 294. In Tillman, the
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defendant’s defense did not negate an essential element of second-degree murder,
either as charged or as instructed. Unlike in Tillman, in this case Borst’s defense
did negate the essential mental-state element as charged by the State. Notably,
Tillman distinguished cases in which the jury submission varied from the charging
instrument with respect to an element of the offense. Id. at 293, citing State v.
White, 431 S.W.2d 182, 185 (Mo. 1968) (where statute prohibited stealing of
another's property “either without his consent or by means of deceit,” the statute
established different methods of commission “which should be differentiated in
pleading and proof”), and State v. Armstrong, 863 S.W.2d 374, 376–77 (Mo. App.
E.D. 1993) (which observed that, pursuant to statute, “the crime of trespass in the
first degree can be violated in one of two ways: (1) when the defendant knowingly
enters a building unlawfully; or (2) when the defendant knowingly remains
unlawfully in a building”).
In Tillman, the defendant’s theory of defense, which alleged an alternate
cause of death, conceded all of the elements of the murder offense with which he
was originally charged. Borst’s defense, on the other hand, sought to dispute and
disprove the essential mens rea element of the offense with which the State had
charged him.
* * * * *
Because we find that the variance between the offense for which Borst was
indicted and the offense of which he was convicted was both material and
prejudicial, that variance was fatal, requiring that Borst’s conviction of second-
degree murder be reversed, and the case remanded for a new trial. Because Borst’s
conviction of second-degree murder was the basis for his conviction on the
associated count of armed criminal action, that conviction is likewise reversed and
remanded. See, e.g., State v. Weems, 840 S.W.2d 222, 228 (Mo. 1992); State v.
Henderson, 551 S.W.3d 593, 606 (Mo. App. W.D. 2018).
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Conclusion
The judgment of the circuit court is reversed, and the case is remanded for
further proceedings consistent with this opinion.
Alok Ahuja, Judge
All concur.
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