09:07 AM

Case summaries for Jan. 28 - Feb. 3, 2022


Each week, The Missouri Bar provides links to all hand downs published online during the past seven days by the Supreme Court of Missouri and the Missouri Court of Appeals. The Missouri Bar has created headings and summaries for each case. Summaries are not part of the opinions of the Court. They have been prepared for the convenience of the reader and should not be quoted or cited.

Criminal | Probate


Indictment and Conviction Show Fatal Variance on Intent
Due process requires notice of the offense charged and, when an offense “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 [indictment].” A variance in the instructions submitted from the charges filed is error if it is material and prejudicial, meaning that it deprives defendant of notice as to what evidence will appear at trial, and the defense would have been better prepared. The second-degree murder statute will “permit the submission of conventional second-degree murder where only felony second-degree murder is charged, or vice versa, but . . . does not authorize the unrestricted substitution of one form of conventional second-degree murder for another whenever the State or the court requests it.” Any such substitution would require notice. The State charged defendant with an intent to kill victim, but proffered instructions on an intent to cause serious physical injury, and defendant’s “no kill-shot” theory of “defense was completely inadequate to defend against the new allegation [.]” Defendant’s objection preserved the issue. Conviction reversed and remanded for further proceedings.  
State of Missouri vs. Coty Jack Borst
(Overview Summary)
Missouri Court of Appeals, Western District - WD83910


Too Late for Will Contest, Discovery of Assets Okay
Statute governing will contests grants standing to any beneficiary of another purported will. An earlier will benefitted appellant, but appellant never presented the earlier will, which time-bars the earlier will. Appellant is therefore not a beneficiary under the earlier will. Respondent presented a later will that benefits appellant less than the earlier will, but still provides appellant’s only possible benefit, so negating that will negates appellant’s only possible benefit. Appellant has no standing to contest the later will. The circuit court did not err in dismissing appellant’s action to contest the later will. The later will’s benefit to appellant supports a claim for discovery of assets under the later will, though appellant titled its claim as a constructive trust, and is not time-barred because it did not limit its search to the earlier will. Circuit court erred in dismissing the claim for discovery of assets.   
Chariton Grove Cemetery Association vs. Gregory Love, et al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD84657