information instruction in Missouri

2017A variance between the information and instruction “alone is not conclusive to the question of whether there' is reversible error.” Lee, 841 S.W.2d at 650 .

2009In determining if a variance is fatal, “[a]s a general rule, ‘it is necessary to determine whether the variance between the information and instruction was material and whether the variance prejudiced the substantial rights of the defendant....”’ State v. Condict, 65 S.W.3d 6, 16 (Mo.App.2001) (quoting State v. Lee, 841 S.W.2d 648, 651 (Mo. banc 1992)). “ ‘A variance is material when it affects whether an accused received adequate notice from the information.

1992State v. Johnson, 606 S.W.2d 655, 656-57 (Mo.1980).

1992State v. Johnson, 606 S.W.2d 655, 656-57 (Mo.1980).

1994State v. Brotherton, 797 S.W.2d 813, 817 [6] (Mo.App.1990).

1993Furthermore, it is well established in Missouri that a “[vjariance between an information and an instruction is fatal only when the instruction submits a new and distinct offense.” State v. Brotherton, 797 S.W.2d 813, 817 (Mo.App.1990); See also State v. King, 747 S.W.2d 264, 275 (Mo.App.1988); State v. Newbold, 731 S.W.2d 373, 385 (Mo.App.1987).

1984Macone, supra. “The variance between the information and an instruction, to be fatal and justify reversal, must be material and prejudicial to the rights of the defendant.” Macone, supra, at 621.

1984Macone, supra. “The variance between the information and an instruction, to be fatal and justify reversal, must be material and prejudicial to the rights of the defendant.” Macone, supra, at 621.

1992In State v. Crossman, 464 S.W.2d 36 (Mo.1971), this Court considered prejudice in answering the question of whether the variance between the information and the instruction was "fatal." Id. at 42 .

1992In State v. Crossman, 464 S.W.2d 36 (Mo.1971), this Court considered prejudice in answering the question of whether the variance between the information and the instruction was "fatal." Id. at 42 .

1993Furthermore, it is well established in Missouri that a “[vjariance between an information and an instruction is fatal only when the instruction submits a new and distinct offense.” State v. Brotherton, 797 S.W.2d 813, 817 (Mo.App.1990); See also State v. King, 747 S.W.2d 264, 275 (Mo.App.1988); State v. Newbold, 731 S.W.2d 373, 385 (Mo.App.1987).

1990State v. King, 747 S.W.2d 264, 275 (Mo.App.1988).

2024State v. Pitchford, 513 S.W.3d 693, 700-01 (Mo. App. E.D. 2017) (finding no discovery violation in part because the State disclosed jail recordings as soon as it had them in its possession and there was no evidence that the State intentionally surprised the defendant); see also State v. Crocker, 479 S.W.3d 174, 177 (Mo. App. S.D. 2015) (finding the court did not plainly err in denying defendant’s motion for a continuance because it correctly found there was no discovery violation since the State provided the information to the defense as soon as it became available to the State and the trial c

2019State v. Barton, 552 S.W.3d 583, 586-87 (Mo. App. W.D. 2018). 2 All statutory references are RSMo 2000, as supplemented and in effect in September and October 2012, unless otherwise indicated. 3 The Amended Information was identical to the original Information with the exception of the total arrearage identified.

2015See State v. Deason, 240 S.W.3d 767, 774 (Mo.App.S.D.2007) (“Rule 25.03' imposes no obligation *178 on the State to disclose evidence that it does not possess.”)- Nevertheless, the trial court, in an abundance of caution, ordered an appropriate remedy for Defendant.

2013“The trial court decides whether or not to admit the victim’s out-of-court statements based on the information provided at the hearing.” State v. Gaines, 316 S.W.3d 440, 449 (Mo.App.

2009In determining if a variance is fatal, “[a]s a general rule, ‘it is necessary to determine whether the variance between the information and instruction was material and whether the variance prejudiced the substantial rights of the defendant....”’ State v. Condict, 65 S.W.3d 6, 16 (Mo.App.2001) (quoting State v. Lee, 841 S.W.2d 648, 651 (Mo. banc 1992)). “ ‘A variance is material when it affects whether an accused received adequate notice from the information.

2009A variance is prejudicial when it affects the defendant’s ability to adequately defend against the charges presented in the information and given to the jury in the instruction.’ ” McCullum, 63 S.W.3d at 252 (quoting State v. Jones, 892 S.W.2d 737, 739 (Mo.App.1994)). “ ‘Unless the defendant can be said to have been prejudiced in that he would have been better able to defend had the information contained the phrase [complained of], he should not be entitled to relief on account of the variance.’ ” Darden, 263 S.W.3d at 763 -64 (quoting Lee, 841 S.W.2d at 650 ).

2009See State v. Jones, 930 S.W.2d 453, 455 (Mo.App.1996) (holding that variance between an information that stated defendant committed robbery "in concert with others" and a verdict director which omitted any reference to other actors did not submit a new and distinct offense because both the information and the instruction referred to robbery in the first degree).

2008Dillard v. State, 137 S.W.3d 483, 485 (Mo.App.2004); Eberspacher, 915 S.W.2d at 386 ; Fox, 819 S.W.2d at 66 ; McVay v. State, 12 S.W.3d 370, 373 (Mo.App.2000).

2008Dillard v. State, 137 S.W.3d 483, 485 (Mo.App.2004); Eberspacher, 915 S.W.2d at 386 ; Fox, 819 S.W.2d at 66 ; McVay v. State, 12 S.W.3d 370, 373 (Mo.App.2000).

2007See, e.g., Folson, 197 S.W.3d at 661-62 (defendant’s position at trial was that the State could not prove the existence of any weapon, regardless of whether it was characterized as a deadly weapon or a dangerous instrument, which was a defense that was equally available to him before and after the amendment to the information); State v. Price, 940 S.W.2d 534, 537 (Mo.App.1997) (defendant failed to demonstrate how he was prejudiced by the amended information because his defense that he did not commit the acts constituting the offense was equally applicable before and after the amendment).

2007See, e.g., Folson, 197 S.W.3d at 661-62 (defendant’s position at trial was that the State could not prove the existence of any weapon, regardless of whether it was characterized as a deadly weapon or a dangerous instrument, which was a defense that was equally available to him before and after the amendment to the information); State v. Price, 940 S.W.2d 534, 537 (Mo.App.1997) (defendant failed to demonstrate how he was prejudiced by the amended information because his defense that he did not commit the acts constituting the offense was equally applicable before and after the amendment).

2003See Costa, 11 S.W.3d at 685 (the trial court’s ruling allowing the victim’s out-of-court statements “was not clearly against the logic of the circumstances then before the trial court.”); State v. Werneke, 958 S.W.2d 314, 319 (Mo.App.

2003State v. Kiesau, 794 S.W.2d 309, 311 (Mo.App.

2003See Costa, 11 S.W.3d at 685 (the trial court’s ruling allowing the victim’s out-of-court statements “was not clearly against the logic of the circumstances then before the trial court.”); State v. Werneke, 958 S.W.2d 314, 319 (Mo.App.