State v. Macomber

8IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 113,869

STATE OF KANSAS,
Appellee,

v.

STEPHEN ALAN MACOMBER,
Appellant.

SYLLABUS BY THE COURT

1.
On a motion for immunity under K.S.A. 2018 Supp. 21-5231, the district court
must consider the totality of circumstances, weigh the evidence before it without
deference to the State, and determine whether the State carried its burden to establish
probable cause that the defendant's use of force was not statutorily justified.

2.
An appellate court will apply a bifurcated standard of review to a district court's
determination of probable cause under K.S.A. 2018 Supp. 21-5231. When a district
court's ruling entails factual findings arising out of disputed evidence, a reviewing court
will not reweigh the evidence and will review those factual findings for supporting
substantial competent evidence only. The ultimate legal conclusion drawn from those
facts is reviewed de novo.

3.
When a defendant properly asserts a self-defense affirmative defense, the State
must disprove that defense beyond a reasonable doubt.

1
 Review of the judgment of the Court of Appeals in an unpublished opinion filed June 23, 2017.
Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed May 17, 2019. Judgment
of the Court of Appeals affirming the district court is affirmed on the issues subject to review. Judgment
of the district court is affirmed.

Jonathan B. Phelps, of Phelps-Chartered, of Topeka, argued the cause and was on the briefs for
appellant; Stephen A. Macomber, appellant was on a supplemental brief pro se.

Jodi E. Litfin, assistant solicitor general, argued the cause, and Elizabeth A. Billinger, assistant
district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the
brief for appellee.

The opinion of the court was delivered by

BILES, J.: Stephen A. Macomber shot and killed an unarmed man during a
confrontation in the man's driveway. The district court denied Macomber's pretrial
motion to dismiss based on self-defense immunity. After a second trial, a jury convicted
him of involuntary manslaughter. A Court of Appeals panel affirmed that conviction.
Macomber seeks our review of two defense arguments the panel rejected: (1) whether
the district court should have granted him self-defense immunity; and (2) whether the
district court's failure to instruct on the statutory self-defense presumption requires
reversal.

We unanimously reject Macomber's claim the district court erred when it denied
him self-defense immunity under K.S.A. 2018 Supp. 21-5231. The State demonstrated
with sufficient evidence there was probable cause Macomber's use of deadly force was
not statutorily justified, so this presented a jury question. On the second issue, a majority
of the court agrees with the panel that any error in not giving the self-defense
presumption instruction was harmless. The judgment of the panel is affirmed on the
issues subject to our review.
2
 FACTUAL AND PROCEDURAL BACKGROUND

Macomber killed Ryan Lofton outside Lofton's southeast Topeka residence.
Macomber fled to Marshall County, where he shot a sheriff's deputy, fled in the deputy's
patrol vehicle, and took a hostage whom he held until eventually surrendering. Macomber
was prosecuted in this case for his actions in Shawnee County. His additional crimes
were prosecuted in two Marshall County cases. See State v. Macomber, No. 113,869,
2014 WL 4723685, at *1 (Kan. App. 2014) (unpublished opinion) (Macomber I).

In this Shawnee County case, with which this appeal is concerned, the State
charged Macomber with first-degree murder and criminal possession of a firearm. There
were two jury trials. In the first, the jury convicted him of intentional second-degree
murder and criminal possession of a firearm. 2014 WL 4723685, at *7. A Court of
Appeals panel reversed and remanded for a new trial. See 2014 WL 4723685, at *10, 12.

Before the second trial, Macomber attempted to dismiss the case, asserting self-
defense immunity under K.S.A. 2018 Supp. 21-5231. The district court held the State
presented sufficient evidence to establish probable cause that deadly force was not
statutorily justified.

The evidence about what happened during the encounter between Macomber and
Lofton came from four eyewitnesses during the retrial: Lofton's wife, Risa; Macomber;
Cassandra Taylor; and Joshua Kenoly. Their accounts conflicted. We detail that
testimony and the other evidence to decide the two issues on review.

3
 Risa Lofton's statements

Risa testified she asked Macomber to pick her up at her home. Macomber was
leaving town and Risa wanted to get money from him. She told Lofton he was taking her
to a "dope house" and she planned to steal money from Macomber. Lofton was unhappy
about this and did not think she would return. According to Risa, Macomber pulled into
the driveway and stayed in his car. When he arrived, she was inside with Lofton. She
gathered her things and put them in the driver's side back seat of Macomber's car. Lofton
stood at the passenger side window talking to Macomber. Risa said Lofton was not
yelling and she did not hear any threats. Macomber had a gun inside the car and trained it
on Lofton while Lofton was walking back toward the car.

Lofton went around to the driver's side window, which was rolled down a couple
of inches. Risa tried to pull Macomber's arm away, but she could not get the gun from
Macomber or get him to point it away from Lofton. She got out and shut the door. As
soon as it shut, she heard a "pop," turned around, and saw Lofton on the ground.
Macomber left immediately.

Risa did not see Lofton reach into Macomber's car or hear him threaten
Macomber. On cross-examination, she said Lofton was upset when Macomber arrived
but not angry. She did not see what Lofton did while standing at the driver's side window.

Macomber's statements

Macomber made several statements about the incident. Hedy Saville testified he
went to her house after the shooting and said he killed a man in Topeka. She said
Macomber said the man was going to shoot Macomber. In a telephone call with KBI
agent Mark Malick before his arrest, Macomber said he was encountered by a man
"'acting like a fool.'" He told Malik the man threatened to shoot him but did not have a
4
gun. The man tried to grab Macomber's gun, and when he did Macomber shot him. He
told Malik he did not intend for that to happen. He told Malik the man said "you want to
shoot me" and indicated "like you're talking big and you don't even have a gun and that
was when he said it occurred." The agent said Macomber told him "it was then that he
decided to fire off a round," and that the man "kept talking shit like I was afraid of him so
I shot him." On cross-examination, Malick said Macomber indicated "on a couple
occasions" that the guy was grabbing his gun. Malick also said Macomber was distressed
during their conversation and made suicide threats.

In a later interview with KBI agent Steve Bundy, Macomber explained he went to
pick up Risa and that Lofton came to the car and started "some shit" with him, so he
threatened to shoot Lofton. He did not know if Lofton had a gun but assumed he did. He
told Lofton "well I've got a fucking gun, right here." Lofton walked away but returned
and started "fucking with" him. Lofton tried to snatch the gun. Macomber said the gun
was in a Crown Royal bag. He did not know which way the gun was pointed. He said he
planned to fire a round off to get Lofton off the car. He said his windows were down and
Lofton wanted to grab the glass and break his window. He said he just wanted to go, but
Lofton would not let him. He "let a round . . . go off" and guessed it hit Lofton. He said
Lofton threatened to shoot him and had a house full of people. He claimed there were
five recent neighborhood shootings.

In a recorded jailhouse telephone call with his father, Macomber said he fired off
one round into the air and hit a guy. And in a call with someone named Theresa, he said
he had a gun because he knew what kind of area he was in. He said he went over to the
house to get Risa and as soon as he pulled up Lofton came to the car and began
questioning him and accusing him of sleeping with Risa. He said Lofton threatened to
shoot him and there were four or five people inside and outside the house on the porch.
Lofton started going toward Macomber's side of the car. He said he told Lofton he had a
5
gun, so if Lofton started shooting he would be shooting too. He said Lofton began pulling
on his door and trying to grab his gun. He said he fired off a round to let Lofton know it
was a gun.

Cassandra Taylor's statements

Taylor was in her car, which was parked in the driveway ahead of Macomber's car.
Joshua Kenoly was also in the car. A short time after Taylor parked, Risa came out the
front door with bags in her hand. Macomber pulled in behind Taylor. Watching in her
rearview mirror, Taylor saw Risa pass her car on the driver's side and put bags in
Macomber's car. Lofton followed Risa around arguing with her. She thought the
argument was over Lofton not wanting Risa to leave. Risa got in Macomber's car on the
passenger side. She saw Lofton go to Macomber's car's passenger side. She saw a flash
and Lofton threw his arms up and said he was shot.

Taylor said she saw struggling inside the car before the flash. She also said Lofton
had his head in the car, and there was struggling between Lofton and either Risa or
Macomber. She said Lofton was on the car's passenger side and facing away at the time
of the flash. On cross-examination, she said she was positive she saw Lofton on the
passenger side. She described the argument between Lofton and Risa as angry yelling.
She saw a struggle between Lofton and Risa about getting out of the car. Lofton stuck his
head inside the car at some point. On redirect, she said Lofton never got into the car.

Joshua Kenoly's statements

The defense put on testimony from Kenoly, who said he did not recall the incident
or his earlier testimony, so his preliminary hearing testimony was read. In that transcript,
Kenoly testified Macomber pulled up to the house and Risa got into the car. Lofton came
out and tried to keep her from leaving. Lofton was outside the passenger door telling her
6
he did not want her to leave. Lofton started talking to Macomber, then they got into "a
little tussle." Next, Kenoly said, he heard Lofton ask, "What are you going to do, shoot
me?" Lofton was still standing by the driver's side window. Kenoly thought Lofton was
less than a foot away from Macomber and did not think Lofton was touching the car.
Kenoly heard a gunshot and ducked. When he got up, Lofton was on the ground. On
cross-examination, Kenoly said he believed the car's windows were down. He said the
tussle lasted maybe five seconds. He defined a "tussle" as "a little bodily movement with
each other."

Detective Roger Smith, who interviewed Kenoly the day of the shooting, said
Kenoly told him Lofton had a heated conversation with Risa, then went to the driver's
side to talk to Macomber. He said the conversation was heated, then got even more
heated and more aggressive. Lofton reached inside the car at Macomber. They tussled for
a few moments. Kenoly heard Lofton say, "[S]o now you're gonna shoot me, huh, mother
fucker?" He heard one gunshot. Lofton staggered back and fell.

A defense investigator who interviewed Kenoly the week before the retrial said
Kenoly told him he was at the house with Lofton and that Risa arrived with Macomber.
Afterward, Lofton came out and was upset Risa showed up with Macomber, who
remained in the car. There was a heated argument, and Lofton's demeanor was
aggressive. Kenoly saw a tussle between Macomber and Lofton. He saw Lofton reach
inside the vehicle and saw pushing and pulling motions. Lofton was standing outside on
the driver's side. Kenoly said he was on the porch facing away from the vehicle when he
heard a shot. He said Lofton was the aggressor.

7
 The autopsy

An autopsy confirmed Lofton died from a gunshot that entered his back on the left
side beneath the shoulder blade. The deputy coroner who performed the autopsy said
there was no indication the gun was fired at close range, meaning within 24-35 inches.
There was no stippling soot or unburned powder on Lofton's clothing, and no stippling on
Lofton's body. He said either the gun was farther away, or there was more clothing he
was unaware of. A defense firearms examiner said the Crown Royal bag from
Macomber's car had damage consistent with a gun discharging from inside it.

The jury found Macomber guilty of involuntary manslaughter. The district court
sentenced him to 136 months' imprisonment. On appeal, Macomber initially challenged
his conviction on three grounds: (1) the district court should have granted his pretrial
motion to dismiss based on statutory self-defense immunity; (2) the district court should
not have instructed the jury on involuntary manslaughter because he claims there was
insufficient evidence to convict him; and (3) the district court incorrectly instructed the
jury on self-defense. A Court of Appeals panel affirmed. State v. Macomber, No.
113,869, 2017 WL 2713209, at *14 (Kan. App. 2017) (unpublished opinion) (Macomber
II).

Macomber petitioned for review on two issues: (1) whether the panel erred by
concluding the district court appropriately denied his pretrial motion to dismiss on self-
defense immunity grounds; and (2) whether the panel erred in determining any error in
the self-defense instructions was harmless. We granted review. Jurisdiction is proper. See
K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions);
K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions
upon petition for review).

8
 SELF-DEFENSE IMMUNITY

Macomber argues the district court should have dismissed the case based on self-
defense immunity under K.S.A. 2018 Supp. 21-5231. The court held the State showed
probable cause that deadly force was not justified. We discern no error.

Additional background

Macomber argued immunity was warranted based on these factual assertions
keyed to the record from his first trial:

 his statements that Lofton threatened to shoot him, was reaching into the
car, was possibly trying to unlock the door, was grabbing at the gun, and at
one point got ahold of the Crown Royal bag;
 Saville's statement to Agent Steve Bundy that Macomber told her Lofton
was going to get a gun;
 the witnesses' agreement that Lofton went to the driver's door; and
 Kenoly's testimony that the exchange became heated and Lofton reached
into the car and had a "tussle" with Macomber.

The State argued three alternative points: (1) Macomber waived immunity by
failing to assert it before the first trial; (2) if Macomber did not waive immunity, there
should be a hearing for the State to demonstrate probable cause; and (3) probable cause
existed to believe Macomber should not be immune from prosecution. To support its
probable cause claim, the State cited evidence from the first trial, including:

 Macomber's testimony that he knew Lofton was unarmed;

9
  Macomber's testimony that he cocked the gun when Lofton went to the
driver side;
 Macomber's testimony that he considered firing a round, but then the gun
went off;
 Risa's testimony that Macomber pointed the gun at Ryan as he walked
around the car;
 Kenoly's testimony that he heard Lofton ask "what are you going to do,
shoot me?"
 Risa's testimony that Macomber's window was not down far enough for
Lofton to reach through;
 Testimony from Risa and Kenoly that Lofton did not threaten Macomber;
 Taylor's testimony that Lofton was running from the car when he was shot;
and
 There was no stippling from the gunshot on Lofton's body or clothing.

The district court denied the immunity request, ruling:

"The long and short of it is at this point in time I find that the use of force was
not necessary under the factual circumstances that were before the Court. It's beyond
what a reasonable person under the circumstances would have believed was necessary. I
also found that the defendant's statement during the point in time of the trial that he
testified that Ryan Lofton had threatened to shoot him was not a credible statement. That
doesn't mean it doesn't come in for the jury to weigh at that point in time. I weighed it for
a specific purpose, and that was the purpose on the motion to dismiss based on immunity
at this point in time. The defendant's version that Ryan Lofton was reaching into the car
when the gun went off is not supported by the scientific evidence or the factual evidence
in this case. There is quite simply a break in time between when Mr. Lofton was reaching
in the car to when the victim, Mr. Lofton, was shot in this case. There is no evidence that
Mr. Lofton had a gun. In fact, the defendant admits that, and he was pretty sure he didn’t

10
 have a gun at one point in time and later he testified that he did not have a gun, referring
to Mr. Lofton.

"Anyway, what I find is that the State has met its burden in this particular case
and that was that they had to establish that the force was not justified as part of the
probable cause determination. And I find that they have met that burden and I'm
dismissing—or denying, I should say, the defendant's motion to dismiss based on
immunity grounds in this case."

Before the panel, Macomber advanced a two-pronged challenge. First, he
disagreed that the evidence did not support his theory that Lofton was reaching into the
vehicle when the gun went off, and that there was a "break in time" between when Lofton
reached into the car and the gunshot. He contended there was no conflicting evidence to
consider because the evidence only showed Lofton reaching into the vehicle and saying
"'What are you going to do—shoot me?" was simultaneous with the gunshot. Second, he
argued the court abused its discretion based on an error of law when it ruled his testimony
about Lofton threatening to shoot him was not credible. He claimed his statements were
consistent with each other and the other witnesses' and that he made them before having a
motive to lie.

The panel held the district court's factual findings were supported by substantial
competent evidence. Macomber II, 2017 WL 2713209, at *14. And based on that, it
concluded the district court did not err when it ruled the State met its probable cause
burden because "[t]here was sufficient evidence to find that Macomber did not
reasonably believe use of deadly force was necessary." 2017 WL 2713209, at *14.

Standard of review

"(a) A person who uses force which, subject to the provisions of K.S.A. 21-5226,
and amendments thereto, is justified pursuant to K.S.A. 21-5222, 21-5223 or 21-5225,

11
 and amendments thereto, is immune from criminal prosecution and civil action for the
use of such force, unless the person against whom force was used is a law enforcement
officer who was acting in the performance of such officer's official duties and the officer
identified the officer's self in accordance with any applicable law or the person using
force knew or reasonably should have known that the person was a law enforcement
officer. As used in this subsection, 'criminal prosecution' includes arrest, detention in
custody and charging or prosecution of the defendant.

....

"(c) A prosecutor may commence a criminal prosecution upon a determination of
probable cause." K.S.A. 2018 Supp. 21-5231.

An appellate court applies a bifurcated standard of review to the probable cause
determination. Factual findings arising from disputed evidence are reviewed for
substantial competent evidence. The ultimate legal conclusion drawn from those facts is
reviewed de novo. State v. Hardy, 305 Kan. 1001, 1012, 390 P.3d 30 (2017).

Discussion

Before this court, Macomber does not challenge the district court's legal
conclusion. Instead, he disagrees with the court's factual findings that: (1) his version
was not compatible with the eyewitness and scientific testimony; and (2) there was a
"break in time" between when Lofton reached into the car and the gunshot. The argument
boils down to whether the court should have found his statements more persuasive than
the other evidence.

In reviewing a trial court's factual findings for substantial competent evidence,
"[a]n appellate court does not 'reweigh evidence, pass on the credibility of witnesses, or
resolve conflicts in the evidence.'" State v. Sharp, 289 Kan. 72, 80, 210 P.3d 590 (2009);

12
see also State v. Evans, 305 Kan. 1072, 1073-75, 389 P.3d 1278 (2017) (district court
ruling on defendant's immunity claim found victim's testimony was not credible; findings
supported by substantial competent evidence). "Substantial competent evidence is that
which possesses both relevance and substance and which furnishes a substantial basis in
fact from which the issues can reasonably be resolved." Sharp, 289 Kan. at 88.

The probable cause determination contemplated by the immunity statute requires a
district court to "consider the totality of the circumstances, weigh the evidence before it
without deference to the State, and determine whether the State has carried its burden to
establish probable cause that the defendant's use of force was not statutorily justified."
Hardy, 305 Kan. at 1012. To be statutorily justified, conduct must meet a two-part test:

"'The first is subjective and requires a showing that [the defendant] sincerely and honestly
believed it was necessary to kill to defend herself or others. The second prong is an
objective standard and requires a showing that a reasonable person in [the defendant's]
circumstances would have perceived the use of deadly force in self-defense as
necessary.'" State v. Haygood, 308 Kan. 1387, 430 P.3d 11 (2018) (quoting State v.
McCullough, 293 Kan. 970, 975, 270 P.3d 1142 [2012]).

In Macomber's case, conflicting evidence supports the trial court's findings that
Lofton did not threaten to shoot him and that a time break occurred between Lofton
reaching into the car and the shooting. As to the threat, Risa testified Macomber had the
gun trained on Lofton before Lofton approached the driver's side window. And more
pointedly, Risa and Kenoly said they did not hear Lofton make threats. Risa in particular
said "no" when asked directly whether Lofton "threaten[ed] to hurt the defendant" or
"threaten[ed] to shoot him."

As to the break in time, the panel held the district court's finding was supported by
the evidence because "[t]he timing of when [Lofton's] arm was in the car was uncertain.
13
Reasonable minds could conclude either way." Macomber II, 2017 WL 2713209, at *14.
It also cited the deputy coroner's range-of-fire testimony; the testimony there was a short
struggle between Macomber and Lofton, Risa, or both; and the testimony Lofton was
either just standing next to the car or turning away from it when Macomber fired. And
despite Macomber's insistence that the panel's analysis permitted the district court to "fill
in the evidence gap" and relieved the State of its burden of proof, the evidence is
sufficient to infer Lofton was no longer struggling with Macomber when he shot Lofton.
For example, when asked where Lofton was when she heard the gunshot, Taylor said he
"was turning around to—I'm guessing he seen the gun because he was turning around to
run from the car." And the medical testimony supports an inference that Lofton was more
than 36 inches from the gun—even though that inference conflicts with other evidence
the gun was fired through the Crown Royal bag.

We hold there was probable cause that Macomber's use of deadly force was not
statutorily justified. See State v. Gayden, 259 Kan. 69, 84, 910 P.2d 826 (1996) (district
court affirmed based on facts, viewed in the light most favorable to the defendant, that
could not support a reasonable belief deadly force was necessary).

In Macomber's case, the district court performed the gatekeeping function
contemplated by K.S.A. 2018 Supp. 21-5231 by weighing the totality of evidence. See
Hardy, 305 Kan. at 1011. And the version of events found by the district court is similar
to those the Gayden court held did not support a reasonable-belief finding. The district
court found support for its conclusion that there was probable cause to believe
Macomber's deadly force was not justified within the disputed facts that: (1) Lofton did
not threaten to shoot Macomber; (2) Lofton was not reaching into the car when the gun
went off; (3) Lofton did not have a gun; and (4) Macomber was pretty sure Lofton did not
have a gun.

14
 We affirm the panel on this issue. The district court's factual findings were
supported by substantial competent evidence, and the probable cause determination was
correct based on those facts.

FAILURE TO GIVE THE PRESUMPTION INSTRUCTION WAS HARMLESS

The panel never actually held whether the district court erred by not instructing on
the self-defense presumption. That instruction provides that a person is presumed to have
a reasonable belief that deadly force is necessary to prevent imminent death or great
bodily harm if, at the time the force is used, the person against whom the force is used is
unlawfully or forcefully entering, or has unlawfully or forcefully entered, and is present
within, an occupied vehicle of the person using the force. Macomber II, 2017 WL
2713209, at *6-10; see K.S.A. 2018 Supp. 21-5224. Instead, the panel simply concluded
it was a "close question" whether the instruction should have been given and then held
any error was harmless. In doing so, it relied largely on Pennington v. State, No. 108,236,
2013 WL 5507291, at *3-4 (Kan. App. 2013) (unpublished opinion). Macomber II, 2017
WL 2713209, at *9-10.

On review, Macomber argues the district court's failure to instruct on the
presumption of reasonableness violated his due process rights to a fair trial. In the
alternative, he claims the error was not harmless under either the constitutional harmless-
error standard, or the state-law harmless error standard. The State did not file a cross-
petition or conditional cross-petition challenging the panel's decision to jump directly to
harmless error. See Supreme Court Rule 8.03(c) (2019 Kan. S. Ct. R. 53). The State also
did not claim the panel erred jumping to harmlessness in either a response to Macomber's
petition for review or in a supplemental brief. See Supreme Court Rule 8.03(d) and Rule
8.03(i)(3).

15
 Accordingly, we focus only on Macomber's due process and harmless error issues.
We must first decide what harmless error standard to use.

Standard of review

"'[F]or instruction issues, the progression of analysis and corresponding standards of
review on appeal are: (1) First, the appellate court should consider the reviewability of
the issue from both jurisdiction and preservation viewpoints, exercising an unlimited
standard of review; (2) next, the court should use an unlimited review to determine
whether the instruction was legally appropriate; (3) then, the court should determine
whether there was sufficient evidence, viewed in the light most favorable to the defendant
or the requesting party, that would have supported the instruction; and (4) finally, if the
district court erred, the appellate court must determine whether the error was harmless,
utilizing the test and degree of certainty set forth in [State v. Ward, 292 Kan. 541, 565,
256 P.3d 801 (2011)].' State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012)."
Haygood, 308 Kan. at 1403.

Discussion

To place the issues into context within our jury instruction review framework,
Macomber preserved the instruction challenge by requesting at trial the omitted
instruction on presumption. See Haygood, 308 Kan. at 1404. And while our court has
never addressed whether the jury must be instructed on the presumption, neither the
lower courts nor either party suggests the requested instruction was not legally
appropriate. Cf. Hardy, 305 Kan. at 1013 (district court must consider statutory
presumption of reasonableness, when factually implicated, in determining motions for
self-defense immunity).

16
 Any error arose out of state law

The panel did not articulate what legal test it used in declaring any error harmless.
But since Macomber requested the instruction, we determine harmlessness using the test
and degree of certainty explained in State v. Ward, 292 Kan. 541, 565, 256 P.3d 801
(2011); see State v. Ingham, 308 Kan. 1466, 1476, 430 P.3d 931 (2018); Haygood, 308
Kan. at 1407. Under the Ward degree-of-certainty paradigm:

"If the error infringes upon a right guaranteed by the United States Constitution, the error
may be declared harmless where the party benefitting from the error proves beyond a
reasonable doubt that the error complained of will not or did not affect the outcome of the
trial in light of the entire record, i.e., where there is no reasonable possibility that the
error contributed to the verdict. Ward, 292 Kan. 541, Syl. ¶ 6." Ingham, 308 Kan. at
1476.

If the error does not implicate a constitutional right, the error may be declared
harmless when the benefitting party demonstrates there is "no reasonable probability that
the error affected the outcome of the trial in light of the entire record." State v. Moyer,
306 Kan. 342, 359, 410 P.3d 71 (2017).

In Kansas,

"(a) A person is justified in the use of force against another when and to the
extent it appears to such person and such person reasonably believes that such use of
force is necessary to defend such person or a third person against such other's imminent
use of unlawful force.

"(b) A person is justified in the use of deadly force under circumstances
described in subsection (a) if such person reasonably believes that such use of deadly

17
force is necessary to prevent imminent death or great bodily harm to such person or a
third person.

"(c) Nothing in this section shall require a person to retreat if such person is using
force to protect such person or a third person." K.S.A. 2018 Supp. 21-5222.

And

"(a) For the purposes of K.S.A. 21-3211 and 21-3212, prior to their repeal, or
K.S.A. 21-5222 and 21-5223, and amendments thereto, a person is presumed to have a
reasonable belief that deadly force is necessary to prevent imminent death or great bodily
harm to such person or another person if:

(1) The person against whom the force is used, at the time the
force is used:

(A) Is unlawfully or forcefully entering, or has
unlawfully or forcefully entered, and is present within, the
dwelling, place of work or occupied vehicle of the person using
force; or

(B) has removed or is attempting to remove another
person against such other person's will from the dwelling, place
of work or occupied vehicle of the person using force; and

(2) the person using force knows or has reason to believe that
any of the conditions set forth in paragraph (1) is occurring or has
occurred.

"(b) The presumption set forth in subsection (a) does not apply if, at the time the
force is used:

18
 (1) The person against whom the force is used has a right to be
in, or is a lawful resident of, the dwelling, place of work or occupied
vehicle of the person using force, and is not subject to any order listed in
K.S.A. 21-3843, prior to its repeal, or K.S.A. 21-5924, and amendments
thereto, that would prohibit such person's presence in the property;

(2) the person sought to be removed is a child, grandchild or is
otherwise in the lawful custody or under the lawful guardianship of the
person against whom the force is used;

(3) the person using force is engaged in the commission of a
crime, attempting to escape from a location where a crime has been
committed, or is using the dwelling, place of work or occupied vehicle to
further the commission of a crime; or

(4) the person against whom the force is used is a law enforcement
officer who has entered or is attempting to enter a dwelling, place of work or
occupied vehicle in the lawful performance of such officer's lawful duties, and
the person using force knows or reasonably should know that the person who has
entered or is attempting to enter is a law enforcement officer." (Emphasis added.)
K.S.A. 2018 Supp. 21-5224.

Macomber argues omitting the presumption instruction triggers constitutional
harmless error, suggesting his due process rights were violated because the omission
deprived him of a meaningful opportunity to present a complete defense. An appellate
court reviews de novo a claim that the trial judge interfered with the defendant's
constitutional right to present a defense. State v. Carter, 284 Kan. 312, 318-19, 160 P.3d
457 (2007).

The State does not directly address harmlessness as to this issue, but touches on
the nature of the claimed error when addressing cumulative jury instruction error. There,

19
the State argues the instructions could not have implicated Macomber's right to present a
defense because that right only encompasses the right to present evidence. And it notes
Macomber was not prevented from presenting any evidence supporting his self-defense
claim.

We need not dive too deeply into this because even if a failure to give jury
instructions on a theory of defense does not fall under the right to present a defense, it
must be acknowledged instruction errors can implicate defendants' due process rights to a
fair trial depending on the circumstances. See 6 LaFave, Israel, King & Kerr, Criminal
Procedure § 24.8(g) (4th ed. 2018) ("Some courts find that when [an affirmative defense
instruction is requested and factually appropriate] . . . the failure to give an instruction
violates the defendant's due process right to present a defense or to a fair trial. Others
apply a more general due process test requiring proof of prejudice, or apply harmless
error review."). And the authority Macomber cites for his constitutional error claim,
Barker v. Yukins, 199 F.3d 867 (6th Cir. 1999), illustrates a circumstance when jury
instructions made the State's path to conviction easier by adding an element of proof to
defendant's affirmative defense.

But that is the point. Barker is distinguishable. Failing to instruct on the
presumption in Macomber's case did not add another element to Macomber's burden, or
somehow lessen the State's burden.

"[A] rebuttable statutory presumption constitutes a rule of evidence . . . ." State v.
Johnson, 233 Kan. 981, 986, 666 P.2d 706 (1983). When the presumption favors the
State, "the jury must be clearly instructed as to the nature and extent of the presumption
and that it does not shift the burden of proof to the defendant." 233 Kan. at 986. A
presumption that proof of one fact is prima facie evidence of another "governs only the

20
burden of going forward with evidence, not the ultimate burden of proof." (Emphasis
added.) State v. Smith, 223 Kan. 192, 193, 573 P.2d 985 (1977).

Because the omission would not have affected the burden of proof, i.e., the State's
duty to disprove the affirmative defense, we hold any error in failing to give the
instruction at issue would be classified as a state-law error.

There is no reasonable probability any error affected the outcome

In declaring the omission harmless, the panel quoted from Pennington, 2013 WL
5507291, at *3-4, in stating:

"'Under the [statutory language setting out the presumption], jurors must presume deadly
force was appropriate in the stated factual circumstances until they are persuaded
otherwise beyond a reasonable doubt by the evidence admitted at trial. That
determination reflects a subset of the decision-making jurors would go through in
evaluating the law of self-defense and reasonable doubt in any event. That is, jurors must
presume a defendant to be not guilty and may not conclude otherwise unless they are
persuaded beyond a reasonable doubt. The same holds true in a self-defense case. The
State has the obligation to prove the elements of the crime beyond a reasonable doubt
notwithstanding the evidence of self-defense. Jurors, therefore, may not find a defendant
guilty unless they are persuaded beyond a reasonable doubt he or she did not act in self-
defense. To do so, they must be persuaded beyond a reasonable doubt—overcoming the
presumption of innocence—that the defendant did not hold an objectively reasonable
belief that force was necessary to defend himself or herself or a third person. That
conclusion is the same one described in the new presumption language in PIK Crim. 4th
52.210.'" Macomber II, 2017 WL 2713209, at *9.

The panel concluded the instructions given in Macomber's case required the jury
to find beyond a reasonable doubt that "it did not appear to Macomber or Macomber did
not reasonably believe deadly force was necessary . . . to prevent death or great bodily
21
harm to himself from Ryan's imminent use of unlawful force." 2017 WL 2713209, at *9-
10.

The panel's rationale appears to follow this progression: (1) the State must prove
the defendant is guilty beyond a reasonable doubt; (2) to do so, it must demonstrate
beyond a reasonable doubt the defendant did not act in self-defense; (3) to do that, the
State must demonstrate the defendant did not reasonably believe deadly force was
necessary to prevent imminent death or great bodily harm; (4) the presumption is rebutted
if the State proves beyond a reasonable doubt the defendant did not reasonably believe
deadly force was necessary to prevent imminent death or great bodily harm; and (5) the
instructions required the jury to find Macomber did not reasonably believe deadly force
was necessary to prevent imminent death or great bodily harm—therefore (6) the jury
would certainly have concluded the State rebutted the presumption if the instruction was
given. In essence, by following the panel's logic, a failure to instruct on the self-defense
presumption can never be prejudicial. We disagree.

Admittedly, the panel's propositions (1), (2), (3), and (5) are accurate. Self-defense
is an affirmative defense, but once a defendant properly asserts it "'the State must
disprove that defense beyond a reasonable doubt.'" Haygood, 308 Kan. at 1406. This
means the State must disprove that the defendant "reasonably believes that [such] use of
deadly force is necessary to prevent imminent death or great bodily harm to such person
or a third person." K.S.A. 2018 Supp. 21-5222(b). And when a jury is instructed on
defense of a person, reasonable doubt, the burden of proof, and the fact that the State's
burden of proof never shifts to defendant, those instructions as a whole encompass
"everything necessary for the jury to consider the burden of proof . . . ." State v. Staten,
304 Kan. 957, 966, 377 P.3d 427 (2016).

22
 The panel's proposition (4)—the presumption is rebuttable—is supportable under
the caselaw and arguably remains an open question. See Pennington, 2013 WL 5507291,
at *3 (after holding presumption not triggered on facts of defendant's case, concluded the
presumption is rebuttable in dicta). This court has said when addressing more common
presumptions against the accused that, "[u]nder the criminal law, a presumption is only a
permissive inference, leaving the trier of fact free to consider or reject it." State v.
Clemons, 251 Kan. 473, 487, 836 P.2d 1147 (1992), abrogated on other grounds by State
v. James, 276 Kan. 737, 79 P.3d 169 (2003). But we also note the Legislature has
demonstrated an intent to create presumptions that are conclusive in other areas by
specifically labeling them as conclusive. See K.S.A. 2018 Supp. 17-7207(a)-(c)
(providing situations in which notice of certain facts related to ownership or transfer of
stock in close corporations is conclusively presumed); K.S.A. 2018 Supp. 44-
501(b)(1)(C) (providing it "shall be conclusively presumed" workers compensation
claimant was impaired by alcohol or drugs if evidence shows specified concentrations of
alcohol or drugs in claimant's system); but cf. K.S.A. 2018 Supp. 23-2208(b) (providing
presumption of paternity may be rebutted only by clear and convincing evidence).

Regardless, the panel's certainty about its proposition (6) seems overstated because
an instruction on the presumption may render a jury more susceptible to acquitting in
some circumstances.

"The purpose of a presumption operating against the accused in a criminal case,
i.e., an instructed inference, is to guide the jury by highlighting the propriety of drawing
a factual inference they might otherwise be naturally less likely to draw. Reluctance on
the part of the jury to draw the inference may arise simply because the jury is unaware
that once having found particular facts to exist they may infer an element of the offense
such as intent or knowledge. In other cases the reluctance to infer arises because the jury
may be unaware absent an instruction that a particular fact naturally flows from certain
other facts they have found to exist. The latter may occur, for example, with respect to the

23
 presumption that illegal importation may be inferred solely from possession of certain
specified narcotic drugs by the defendant in this country. Encouragement of the trier of
fact to draw the factual inference, by virtue of it being the subject of an instructed
inference, is designed to assist the prosecution." (Emphases added.) 2 Handbook of Fed.
Evid. § 303:4 (8th ed. 2018).

Applying this reasoning to K.S.A. 2018 Supp. 21-5222's presumption operating
for the accused, some utility is apparent in a case like Macomber's. In other words, an
instruction on circumstances in which using deadly force is presumed reasonable informs
the jury that a reasonable belief that deadly force is necessary to prevent death or great
bodily harm naturally flows from the fact, if found, that the assailant was attempting to
enter the defendant's occupied vehicle. Such an instruction may encourage the jury to
draw the factual inference of reasonableness—or to not draw the factual inference of
unreasonableness—and make the jury less inclined to find the State met its burden of
proof than it otherwise would without the instruction. Said differently, a presumption
instruction can tilt the balance even further in the defendant's favor than just the
presumption of innocence.

Two Texas decisions involving the same defendant, illustrate this: a Texas Court
of Appeals decision reversing a conviction because the trial court failed to instruct on a
self-defense presumption of reasonableness; and the subsequent Texas Court of Criminal
Appeals decision reversing it. See Villarreal v. State, 453 S.W.3d 429 (Tex. Crim. 2015);
Villarreal v. State, 393 S.W.3d 867 (Tex. App. 2012).

Both appeals considered the circumstances when a jury convicted Villarreal of
murdering a fellow partygoer after a verbal altercation. Several witnesses testified the
victim was unarmed, but Villarreal told police the stabbing happened after the victim
came at him with a sharp object. Under Texas law, use of deadly force is presumed
reasonable if the defendant knew or had reason to believe the victim was committing or
24
attempting to commit murder; the defendant did not provoke the victim; and the
defendant was not otherwise engaged in criminal conduct. Texas law required the jury to
be instructed on favorable presumptions supported by the evidence, but the instruction
was not given and the jury rejected a self-defense claim.

The harmlessness test the Texas courts applied was whether the omission was "so
egregious and created such harm that the defendant was deprived of a fair and impartial
trial." 453 S.W.3d at 433. The Texas Court of Appeals held this standard was met. It
reasoned the instruction's absence significantly undermined the self-defense claim when
the primary issue was whether Villarreal's deadly conduct was justified, there was
conflicting testimony about that, and closing arguments highlighted the disputed
reasonableness of Villarreal's conduct. The court concluded failing to instruct on the
presumption under those circumstances deprived Villarreal of its benefit. See Villarreal,
393 S.W.3d at 875-76.

On review, the Texas Court of Criminal Appeals took a contrary view and
reversed. The court agreed the instructions weighed in favor of finding harm because they
did not include the required presumption. But it disagreed on the weight to give the
instruction's absence because the jury still would be able to conclude the presumption
was inapplicable based on the facts. Villarreal, 453 S.W.3d at 433. In this instance, the
evidence showed the victim was unarmed and Villarreal either assaulted the victim or
provoked the physical violence. See 453 S.W.3d at 443.

In Macomber's case, the witness testimony is at best ambiguous about what
happened. Among these varying accounts, one factual interpretation has Lofton agitated,
yelling at Macomber, pulling on the car door and window, and reaching into the car to
grab at the gun when Macomber fired. In Villarreal, the factual version favoring the
presumption was based on minimal evidence that was clearly contradicted by the
25
remaining evidence. In Macomber's case, the version favoring a presumption is also
slight, but just as plausible as any other version of the facts presented. This means the
evidence is inconclusive whether Macomber acted in self-defense.

But that balance gets tipped in favor of harmlessness by Macomber's own
statements. They strongly suggest he did not actually believe deadly force was necessary
to prevent death or great bodily harm, even if Lofton was entering or within the car as the
statute contemplates. In his call with Malick, Macomber said Lofton "kept talking shit
like I was afraid of him so I shot him." And in a later interview, Macomber said he
planned to fire a round off to get Lofton off the car. In yet another jailhouse call, he said
he fired off a round to let Lofton know he had a gun.

Given this, there is no reasonable probability a properly instructed jury would
reject the State's claim that Macomber did not reasonably believe deadly force was
necessary. Macomber's own statements—direct evidence of his state of mind—strongly
undercut any claim he subjectively believed deadly force was necessary to prevent harm
to himself. See State v. Walters, 284 Kan. 1, 9, 159 P.3d 174 (2007) (first inquiry in self-
defense analysis examines defendant's subjective belief and requires evidence indicating
defendant honestly and sincerely believed it would be necessary to kill in self-defense).

Judgment of the Court of Appeals affirming the district court is affirmed on the
issues subject to review. Judgment of the district court is affirmed.

STEGALL, J., not participating.

26
 MICHAEL J. MALONE, Senior Judge, assigned. 1

***

JOHNSON, J., concurring in part and dissenting in part: I agree with the majority's
opinion up to the point that it cherry-picks only those statements by Stephen A.
Macomber that support its conclusion that "he did not actually believe deadly force was
necessary to prevent death or great bodily harm, even if Lofton was entering or within the
car as the statute contemplates." Slip op. at 26. In doing so, the majority apparently
assigns no weight or credibility to Macomber's other recited statements. For instance,
Hedy Saville testified that Macomber said the man was going to shoot him; KBI Agent
Steve Bundy testified that Macomber told him that he assumed Ryan Lofton had a gun,
that Lofton threatened to shoot him and had a house full of people, and that there had
been five recent neighborhood shootings; and in Macomber's recorded jailhouse
telephone call to Theresa, he said Lofton threatened to shoot him and there were four to
five people inside and outside the house when Lofton began pulling on the car door and
trying to grab the handgun. Slip op. at 4-6. Those statements do not definitively refute the
presumption of self-defense.

When the majority relies on selected portions of the evidence, while ignoring other
contradictory evidence, it is engaging in evidence-weighing and credibility-assessment.
That tack runs counter to our oft-repeated prohibition against acting as the fact-finder
when engaging in appellate review. In my view, the conflicting testimony could not, as a

1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 113,869
vice Justice Stegall under the authority vested in the Supreme Court by K.S.A. 20-2616.

27
matter of law, definitively rebut the statutory presumption that self-defense was
necessary. Given that this is not a circumstance in which the evidence is viewed in the
light most favorable to the State, I would hold that the State did not meet its burden to
show that withholding an instruction on the presumption was harmless, i.e., that there
was no reasonable probability that a properly instructed jury would apply the legal
presumption of self-defense. See Siruta v. Siruta, 301 Kan. 757, 772, 348 P.3d 549
(2015) (explaining that for preserved jury instruction errors, the party benefiting from
error has the burden to show harmlessness).

NUSS, C.J., and LUCKERT, J., join in the foregoing concurring and dissenting
opinion.

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