Section 4.12 Variance and Constructive Amendments

• Library: Criminal Practice 2012 Supp

G. (§4.12) Variance and Constructive Amendments

A variance occurs when the evidence at trial proves facts other than those alleged in the charging instrument. The problem with a variance is that the defendant may be deprived of constitutional rights to notice of the charges and the variance may impact on the defendant’s ability to assert double jeopardy protection against successive prosecution. In a variance situation, the defendant must demonstrate actual prejudice for the variance to be considered fatal and warrant reversal. See generally:

· State v. Fowler, 938 S.W.2d 894 (Mo. banc 1997);

· State v. Levesque, 871 S.W.2d 87 (Mo. App. E.D. 1994);

· United States v. Jenkins, 779 F.2d 606, 617 (11^th Cir. 1986);

· United States v. Begnaud, 783 F.2d 144, 148 (8^th Cir. 1986);

· State v. King, 747 S.W.2d 264 (Mo. App. E.D. 1988).

With open file discovery, pattern instructions, and pattern charges, prejudicial variance rarely occurs, and then only in the most complex of situations. The circumstances of the fatal variance have, however, arisen on occasion, especially in federal conspiracy cases. A variance of proof from the indictment can create a situation where a unitary single conspiracy is pleaded or charged by the prosecution, yet multiple conspiracies are proven. Under these circumstances, the variance is fatal and results in reversal. See Kotteakos v. United States, 328 U.S. 750 (1946); United States v. Snider, 720 F.2d 985 (8^th Cir. 1983), cert. denied, 465 U.S. 1107 (1984); United States v. Jackson, 696 F.2d 578 (8^th Cir. 1982), cert. denied, 460 U.S. 1073 (1983). Snider involved charges of conspiracy to distribute marijuana, and Jackson involved a conspiracy to perform arsons for profit. The Eighth Circuit in both of these circumstances indicated that the evidence at trial showed not a unitary conspiracy but more than one unrelated conspiracy. Under these circumstances, some defendants in both cases did receive relief. Whether relief is granted in the multiple conspiracy situation will be determined on the circumstances of the case with careful review of the jury instructions that were given. It should be noted that failure to properly instruct the jury on multiple conspiracies is a very important consideration in deciding whether relief should be granted. Jackson, 696 F.2d 578. But a failure to instruct in multiple conspiracies is not per se prejudicial. See United States v. Nevils, 897 F.2d 300 (8^th Cir. 1990), cert. denied, 498 U.S. 844 (1990).

The law has evolved in that a variance is usually treated as instructional error rather than as fatal. See Levesque, 871 S.W.2d 87; see also Jenkins, 779 F.2d 606; Begnaud, 783 F.2d 144; United States v. Johnson, 934 F.2d 936 (8^th Cir. 1991). The question of multiple conspiracy is one of fact, and the only issue is whether there is sufficient evidence for the jury to be instructed on a multiple conspiracy theory. If the jury is instructed on the multiple conspiracy theory, rarely does reversible error occur. United States v. Haren, 952 F.2d 190 (8^th Cir. 1991); United States v. Watts, 950 F.2d 508 (8^th Cir. 1991). With the appellate trend in this area, the concept of fatal variance is more and more uncommon. State v. Lee, 841 S.W.2d 648 (Mo. banc 1992), 222 F.3d 441 (8^th Cir. 2000); State v. Hubbard, 698 S.W.2d 908 (Mo. App. W.D. 1985).

In addition to a variance problem, there may be a sufficiency-of-the-evidence problem. See State v. Dudley, 51 S.W.3d 44, 50–52 (Mo. App. W.D. 2001), in which a conviction for armed criminal action was reversed because the crime was charged as unlawfully entering rather than unlawfully remaining. Compare MAI-CR 3d 319.12 (the form instructions for assault in the second degree; submission of mental state and conduct) with MAI-CR...