State v. Borst

• Decision Date: 01 February 2022
• Docket Number: WD 83910
• Citation: 643 S.W.3d 586
• Parties: STATE of Missouri, Respondent, v. Coty Jack BORST, Appellant.
• Court: Missouri Court of Appeals

643 S.W.3d 586

STATE of Missouri, Respondent,

v.Coty Jack BORST, Appellant.

WD 83910

Missouri Court of Appeals, Western District.

Filed: February 1, 2022

Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2022

Application for Transfer Denied May 17, 2022

Kathryn M. Merwald, Kansas City for appellant.

Kristen S. Johnson, Jefferson City for respondent.

Before Special Division: Alok Ahuja, P.J., and Mark D. Pfeiffer and Thomas N. Chapman, JJ.

Alok Ahuja, Judge

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 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 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.

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.

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.

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"

...