NOT DESIGNATED FOR PUBLICATION
No. 121,043
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JOHN WESLEY TOWNER JR.,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; CHERYL A. RIOS, judge. Opinion filed June 25, 2021.
Affirmed.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL, J., and MCANANY, S.J.
PER CURIAM: John Towner Jr. was convicted of voluntary manslaughter and
attempted intentional second-degree murder. He contends on appeal that he was immune
from prosecution and that he acted in defense of another. He also contends the district
court abused its discretion in admitting certain exhibits into evidence at trial and denying
his requested instruction on the defense of another. Because we are not persuaded by
Towner's arguments and find no reversible trial errors, we affirm these convictions.
The events leading to these convictions took place on the morning of January 23,
2018, at the home of John Austin Sr. (John Sr.). His son, John Austin Jr. (John Jr.), was
visiting his father that morning. Towner and a man, whom Towner later referred to
1
simply as "Joe," arrived at the house and an altercation ensued which led to Towner
shooting both John Sr. and John Jr. John Sr. survived the shooting, but John Jr. later died
from his wounds.
Towner was tried for felony murder, second-degree intentional murder, attempted
intentional second-degree murder, and attempted aggravated robbery. The jury convicted
Towner of the lesser crime of the voluntary manslaughter of John Jr. and the attempted
second-degree intentional murder of John Sr. Towner was acquitted on the other charges.
After the court denied Towner's motion for a durational departure, the court sentenced
him to a prison term of 168 months with 36 months of postrelease supervision.
TOWNER'S CLAIM OF IMMUNITY FROM PROSECUTION
The central issue of this appeal is whether Towner was immune from prosecution.
He raised that issue in a pretrial motion, which the district court denied following two
days of testimony. While Towner also claims the district court committed trial errors in
the admission of certain exhibits and in the court's instructions to the jury, he does not
claim the evidence was insufficient to support his convictions. Rather, he claims that (1)
the evidence presented at the hearing on his immunity motion was insufficient to justify
the district court denying relief, (2) the district court applied the wrong standard in
denying the motion, and (3) he never should have been tried for shooting John Sr. and for
shooting and killing John Jr.
The Statutory and Case Authority
The statutory foundation for Towner's claim of immunity is found in two statutes:
K.S.A. 2020 Supp. 21-5222 and K.S.A. 2020 Supp. 21-5231. Under K.S.A. 2020 Supp.
21-5222(a):
2
"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."
Under K.S.A. 2020 Supp. 21-5222(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 force is
necessary to prevent imminent death or great bodily harm to such person or a third
person."
Under K.S.A. 2020 Supp. 21-5231(a): "A person who uses force which . . . is justified
pursuant to K.S.A. 2020 Supp. 21-5222 . . . is immune from criminal prosecution . . . for
the use of such force."
In the face of a claim of immunity from prosecution, "A prosecutor may
commence a criminal prosecution upon a determination of probable cause." K.S.A. 2020
Supp. 21-5231(c). Probable cause is determined at a hearing conducted by the district
court on the defendant's claim of immunity. The burden of proof is on the State at that
hearing. In considering the immunity issue, the district court must consider the totality of
the circumstances, weigh the evidence without giving deference to the State, and
determine if the State has established probable cause that the defendant's use of force was
not statutorily justified. State v. Macomber, 309 Kan. 907, 916, 441 P.3d 479 (2019). The
State meets its burden if it shows that the evidence produced at the hearing is "sufficient
for a person of ordinary prudence and caution to conscientiously entertain a reasonable
belief of [the] defendant's guilt despite the claim of justified use-of-force immunity."
State v. Phillips, 312 Kan. 643, Syl. ¶ 3, 479 P.3d 176 (2021).
3
To arrive at a legal conclusion as to whether the State has met this burden, the
district court resolves conflicts in the evidence, draws reasonable inferences from the
evidence, and makes findings of fact based upon the evidence presented. State v. Thomas,
311 Kan. 403, 413, 462 P.3d 149 (2020). On appeal our task is to review the district
court's factual findings to determine if substantial competent evidence supports them. We
review the district court's legal conclusion de novo. 311 Kan. at 409. Substantial
competent evidence is defined as evidence that "'possesses both relevance and substance'"
and provides a "'substantial basis in fact from which the issues can reasonably be
resolved.'" Macomber, 309 Kan. at 916.
The Evidentiary Hearing on Towner's Motion for Immunity from Prosecution
• Testimony of John Sr.
John Sr. testified at the hearing on Towner's motion. John Sr. lived alone at his
home in Topeka. His son, John Jr., visited him every day to help with household chores
because John Sr. had been injured in an automobile accident. Less than an hour after John
Jr. arrived, Timmie Robinson, a childhood friend of John Sr.'s, arrived for an unexpected
visit. Timmie was acting rather weird that morning and would not sit down. John Sr.
thought Timmie was setting him up.
About 35 minutes later, there was another knock on the door. When John Sr.
answered the door, he was confronted with Towner and another man who was later
referred to as Joe. John Sr. did not know either of them but later realized he was
acquainted with members of Towner's family. Towner asked if he could come in to use
the bathroom. John Sr. said Towner could not come in but rather he should go down the
street to McDonalds.
4
Towner then blocked the screen door with his foot and said to John Sr., "'You're
gonna let me in.'" Towner then reached for a gun in his pants, but John Sr. grabbed at the
gun before Towner could fully pull it out and the two of them fought for control of the
gun. All of this happened on the front porch with Joe standing behind Towner. John Sr.
could not fight Towner for long because of John Sr.'s injuries. All of a sudden John Sr.'s
right hand gave out. At that point he jumped off the porch into the yard, and Towner shot
him in the back.
At this point it is important to note that a photo taken of John Sr. in the emergency
room after the shooting shows the entry wound in the area of John Sr.'s right hip. This
photo was introduced into evidence at Towner's later jury trial but not at the hearing on
Towner's claim of immunity. Because Towner claims the district court erred in denying
his immunity motion, our review is based upon what evidence was presented at the
hearing, and the only evidence before the court at the time of the hearing was John Sr.'s
testimony that Towner shot him in the back.
John Sr. did not possess a gun. He later testified, "I just don't believe in guns."
After being shot John Sr. fell to the ground. As John Sr. got back on his feet he looked
back and saw Towner open the screen door and enter the house. John Jr. had not come to
the door; he was still inside the house with Timmie. As John Sr. made his way to a
neighbor's house, he heard a gunshot coming from his house.
• Testimony of Officer Bulmer
Officer Aaron Bulmer of the Topeka Police Department testified that he was the
first to respond to the 911 call about this incident. As he approached the house he saw
John Jr. lying face down partially on the porch steps and partially on the ground. John Jr.
was badly injured. He had a bullet hole in his chest and a serious injury to his left arm.
5
There were no weapons around where John Jr. was lying. He rode with John Jr. in the
ambulance to the hospital.
• Testimony of Jermaine Rayton and Latoya Austin
Jermaine Rayton, a prison inmate at the time of the hearing, and LaToya Austin,
the daughter of John Sr. and the sister of John Jr., testified. Rayton knew Towner from
federal prison. The court admitted text messages from Rayton to Latoya in which he told
her that he had told Towner that robbing people was not the way to go and that Towner
was trying to get Rayton to set up some victims for Towner to rob. Rayton told Latoya,
"[I] hope he [Towner] get what he got coming."
Towner was charged with attempted aggravated robbery of John Sr., but he was
acquitted of this charge at trial.
• Testimony of Detective Hayden
Detective Ryan Hayden of the Topeka Police Department testified that he
interviewed Towner three days after the shooting. Towner had not turned himself in, and
he did not report the shooting to the police after it occurred. Towner initially told Hayden
he did not know anything about the incident, had not been in the area at the time of the
shooting, and did not own a handgun. Later in the interview, when Hayden confronted
Towner with the fact that Towner's cell phone had been found at the scene and
surveillance video in the area showed his vehicle was there that day, Towner admitted
that he had been there and had shot John Sr. and John Jr.
Towner told Hayden that he met a friend on the street that day, and the friend
asked him to drive him to the house of a person that owed him money. Towner refused to
identify this friend to Hayden, but Towner refers to this person later in the record simply
6
as Joe. In any event, Towner said that Joe offered him $20 for gas and $20 for Towner's
time if he would "go over there with him." Towner had plans that day to take a child to a
doctor's appointment after taking Joe to this house. Towner denied going to the house to
rob someone.
Towner told Hayden that when they got to the house, Joe went to the door and
encountered John Sr. and there followed an argument that turned into a fight which ended
up off the porch. While John Sr. and Joe were fighting, John Jr. came to the door. Towner
initially claimed John Jr. had a gun with a fiber-optic gun sight. Hayden told Towner that
he executed a search warrant on the house after these events and no weapons or firearms
of any kind were found in the house. At that point Towner changed his story and said he
did not see John Jr. with a gun but saw him make a move to his waistband. At that point
Towner said he shot John Jr. He told Hayden "that he thought it was shoot or be shot."
Towner then shot John Sr. who was on the ground fighting with Joe. Towner said
it appeared to him that John Sr. was winning the fight. Towner told Hayden he did not
see John Sr. with a gun.
• Testimony of Towner
Towner testified in support of his motion. According to Towner, on the day of the
shootings he planned to take his wife to work, take his children to school, and then look
for a job. (Towner had just gotten out of the federal prison in Leavenworth two weeks
earlier.) He testified about the $40 offer from Joe, with whom his only contact was that
they had been together in juvenile detention for two or three months more than 15 years
earlier. Joe was going to John Sr.'s house to pick up some money that he owed Joe.
When they got to John Sr.'s house Towner went with Joe and approached the
house. He claimed—contrary to John Sr.'s testimony—that it was Joe who knocked on
7
the door rather than he. According to Towner, John Sr. had a can of beer in his hand
when he opened the door. Towner could tell that John Sr. "was high, under the influence
of some drugs . . . he was drinking . . . he was wasted." Towner acknowledged that John
Sr. did not have a gun when he was at the door. There was a heated conversation between
Joe and John Sr. when John Sr. stepped out onto the porch. John Sr. used an
"[a]ggressive, like, disrespectful, insulting" tone of voice and "was just, like, kind of like,
bullying him."
Towner denied that he or Joe put a foot in the door or that either of them ever tried
to enter the house. When Joe tried to say something to John Sr., John Sr. "punched him
and tackled him off the porch." Towner was at first "totally shocked, because I didn't
expect none of that." He then thought, "I got somewhere to be. I got maybe two minutes
to be heading to my daughter's school or I'm going to be late picking up my daughter to
get her to the eye doctor's appointment. I ain't got time for this." Towner acknowledged
that during all of this John Sr. "never grabbed me, or touched me, or did anything to me.
. . . I just wanted to get out of there. I had something else to do."
Towner said that at that point he started to leave when he saw John Jr. running at
him with a black gun with a red fiber-optic sight. He claimed that John Jr. "had a gun to
[his] head." At that point Towner said he thought, "I'm about to get killed." Towner
admitted that John Jr. never fired a shot, but Towner claimed John Jr. kept running at him
so Towner drew his gun, a 9 mm Ruger, and shot. (Towner later told Detective Hayden
that he did not own a gun.) The first shot ricocheted off the wall. According to Towner,
his thinking was "[e]ither shoot or be shot." So Towner fired two more shots at John Jr.,
who fell to the floor "right inside the house . . . in front of the screen door, on the inside.
. . . He never made it outside."
Towner then turned and saw that John Sr. and Joe were still fighting at the bottom
of the porch steps. Towner said that John Sr. was on top of Joe and was "[b]eating him up
8
pretty good, real bad." When John Sr. looked back at Towner, Towner said he "could not
help but think [John Sr.] was going for a gun too. . . . [So] I shot him, one time. . . . I
really just wanted to get out of there before more people came out of the house to kill
me." Significantly, Towner shot John Jr. in the back and he admitted that he never saw
John Sr. with a gun.
At that point Towner left, picked up his daughter, took her to lunch, and then took
her to the eye doctor.
• Closing Arguments
Towner's counsel argued that under the totality of the circumstances, Towner acted
as a reasonable person would. He was not expecting "anything controversial in any way,"
and he was not expecting to use a firearm. Counsel then recounted Towner's version of
the events, including Towner's position that he did not initiate anything; did not try to
enter the house; did nothing illegal; and that his use of force was reasonable under the
circumstances, entitling him to immunity from prosecution.
The prosecutor argued that Towner's testimony was not believable. With regard to
the claim that John Sr. attacked Joe, jumped off the porch, and continued to attack him,
the prosecutor stated:
"The Court was able to observe Mr. Austin, Sr., was able to observe his physical
condition. And the evidence was that . . . the physical condition that he had at the time
this event occurred. He was under the care of his son, Austin, Jr. He was recovering from
an automobile accident. He had an injury to his hand. He was walking with a cane. He
had to have assistance with going to the bathroom, with putting on his shoes. He was in
such a condition that he couldn't even bend over and tie his shoes. But to believe that
someone who is almost 60 years old, would attack another individual, unprovoked, and
then take that fight, escalate it off the porch onto the ground, is simply not believable."
9
The prosecutor pointed out that there is no evidence that there was a gun at John
Sr.'s house. No gun was found on or around John Jr. Moreover, John Sr. did not have a
gun; he was shot in the back. There is no evidence that Towner acted out of necessity to
protect himself or Joe from the use of unlawful force. These events occurred at John Sr.'s
home when Towner attempted to force his way inside. The prosecutor argued that
Towner did not honestly believe—nor would a reasonable person believe—that Towner
was justified in his actions in response to an imminent use of unlawful force against him
or Joe. Towner did not stay and render aid to the victims, nor did he contact the police to
report this incident. The prosecutor argued Towner was not entitled to immunity from
prosecution.
• The District Court's Ruling
The district court ruled from the bench. The district court initially discussed
K.S.A. 2017 Supp. 21-5222 and stated:
"[I]t requires first, that the Court find that there is evidence supporting first, a subjective
belief on behalf of Mr. Towner, that there was . . . unlawful force which was imminent
against Mr. Towner. And so therefore, Mr. Towner necessarily defended himself with
force. The Court must also objectively look at this and determine whether or not a
reasonable person would have come to the same conclusion that Mr. Towner came to.
Whether a reasonable person would believe that unlawful force was—was being directed
at him."
With regard to the first element of the immunity test—Towner's subjective belief
that unlawful force was being used against him or another and, therefore, he had to
shoot—the court concluded, "I don't believe that." But even if Towner held such a belief
that his only option was to "shoot or be killed," under the second prong of the test the
court did not find Towner's conduct was reasonable "from an objective standard." The
10
court stated that "people who enter a home without permission face the possibility of
lawful physical force by a person defending against the trespass, and are not in the same
position as an otherwise innocent person."
The court found that Towner's "version of events don't add up to support this self-
defense theory." Towner went with a man he had briefly known many years earlier and
did not know well. "Towner says he believes it was going to be an easy transaction.
Didn't expect any kind of a violent or aggressive transaction. Yet, he went to that house
with a gun." When compared to the testimony of John Sr. and "the detectives and other
persons who have testified in this hearing," and considering all the evidence (including
the evidence that neither John Sr. nor John Jr. possessed a weapon), the court did "not
believe that Mr. Towner's evidence is . . . more credible than all of the other evidence . . .
in considering whether or not Mr. Towner had a subjective belief . . . that unlawful force
was imminent against him.
"[B]ased upon the evidence that was submitted by both parties in this hearing," the
court denied Towner's motion for immunity from prosecution.
Analysis
On appeal, Towner contends that he reasonably believed he had to use force to
protect himself from John Sr. and John Jr. and that the State failed to meet its burden to
prove that the force he used was not justified. Towner argues the district court applied the
wrong facts to the immunity test and, thus, arrived at a conclusion that was not supported
by the evidence.
To be statutorily justified, Towner's conduct had to meet a two-part test, which the
district court applied in this case. First, there must be a showing that Towner sincerely
and honestly believed it was necessary to use deadly force in order to defend himself.
11
Second, there must be a showing that a reasonable person in Towner's "'circumstances
would have perceived the use of deadly force in self-defense as necessary.'" Macomber,
309 Kan. at 916-17.
Here, the district court found that the evidence established that Towner's conduct
comported with neither of these standards. Both are required for a defendant to invoke
the right to statutory immunity from prosecution.
The district court was in the better position to weigh the credibility of the
witnesses. We do not revisit on appeal issues of witness credibility. Moreover, the district
court could evaluate the physical characteristics of John Sr. in evaluating the conflicting
descriptions of the events leading up to the shootings. In considering all the evidence
presented, the district court was persuaded by the description of the events presented by
the State's witnesses over the version advanced by Towner.
The district court both recognized and applied the correct legal standard to reach
its conclusion. See Phillips, 312 Kan. at 656; State v. Dukes, 59 Kan. App. 2d ___, 481
P.3d 184, 190-91 (2021) (finding district court applied the appropriate legal standard
when it found the State failed to show a reasonable person would believe the defendant's
use of deadly force was not justified).
Towner criticizes two observations of the district court made in announcing its
decision from the bench. Towner's criticisms are predicated on his version of the events,
which the district court did not find to be persuasive.
First, the district court noted: "The Austin[s] . . . were in their home. They were in
a position to lawfully defend their domicile." Citing K.S.A. 2020 Supp. 21-5224, Towner
argues that this statement has nothing to do with the killing of John Jr. because he was a
mere visitor in his father's home that day and was not protecting his own domicile.
12
K.S.A. 2020 Supp. 21-5224(a) relates to certain circumstances under which a
presumption arises that a person has a reasonable belief that deadly force is necessary to
prevent imminent death or great bodily harm. Under subsection (b) of the statute, the
presumption does not arise when "(1) [t]he person against whom the force is used has a
right to be in, or is a lawful resident of, the dwelling." (Emphasis added.) K.S.A. 2020
Supp. 21-5224(b)(1). While the statute does not concern itself with actions of a son in
defending the home of his father, it clearly obviates any presumption that Towner
reasonably believed that deadly force was necessary.
But this whole issue is a red herring. The fact is the district court found Towner's
testimony lacking in credibility. Towner testified that John Jr. came at him with a gun
pointed directly at Towner's head. But the more credible John Sr. testified that there were
no guns in the house, and Police Officer Bulmer and Detective Hayden testified that no
weapons were found at the scene of the crime, including on or around John Jr. There is
ample evidence to support the district court's finding that Towner was not justified in
using deadly force against John Jr.
Second, the district court observed:
"Mr. Towner could have walked away at that point. There's–he didn't know 'Joe'
very well, he could have walked away. Mr. Towner stayed, even though he knew he was
not welcome. He stayed, and Mr. Austin had the legal right to defend himself and his
domicile, in his home."
Towner argues that he could not have walked away because of (1) the rapid acceleration
of events that day, (2) John Jr. pointing a gun at his head, and (3) Towner's surprise when
an expectedly peaceful event turned violent.
13
Though the events developed rapidly, Towner forgets that he instigated them. He
is the one who put his foot in John Sr.'s door, told John Sr., "'You're gonna let me in,'"
and then reached into his pants for his gun. The only surprise Towner experienced was
John Sr.'s failure to acquiesce to a home invasion and probable robbery. As for John Jr.,
Towner fails to mention that there was, in fact, no gun in John Jr.'s possession when
Towner gunned him down.
We find substantial competent evidence to support the district court's finding that
Towner did not have the subjective belief that under the totality of the circumstances the
use of force was necessary, and that a reasonable person, under the same circumstances,
would not have found that force was necessary. The district court properly fulfilled its
role as the gatekeeper on the State's ability to prosecute the defendant in the face of a
claim of immunity. See Phillips, 312 Kan at 655-56. The district court did not err in
denying relief on Towner's motion for immunity from prosecution for these crimes.
THE DENIAL OF TOWNER'S REQUESTED JURY INSTRUCTION ON DEFENSE OF ANOTHER
In Instruction No. 9, the court instructed the jury:
"Defendant claims his use of force was permitted as self-defense.
"Defendant is permitted to use against another person physical force that is likely
to cause death or great bodily harm only when and to the extent that it appears to him and
he reasonably believes such force is necessary to prevent death or great bodily harm to
himself from the person's imminent use of unlawful force. Reasonable belief requires
both a belief by defendant and the existence of facts that would persuade a reasonable
person to that belief.
"When use of force is permitted as self-defense there is no requirement to
retreat."
14
Towner requested at the instruction conference that the phrase "or [in] defense of
another" be added to this instruction. He relies on K.S.A. 2020 Supp. 21-5222,
subparagraph (b) in particular, for support. The statute provides:
"(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
force is necessary to prevent imminent death or great bodily harm to such person or a
third person." K.S.A. 2020 Supp. 21-5222(a) and (b).
The district court denied Towner's request. Towner claims it was error to do so.
Standard of Review
In considering whether the district court erred in failing to give Towner's requested
defense of another instruction, we first determine whether the issue was properly
preserved for review. Here, it was.
Second, we determine whether the proffered instruction was legally appropriate.
Our review is unlimited over this issue.
Third, we determine whether there was sufficient evidence, viewed in the light
favoring Towner, that would have supported the giving of this instruction.
Finally, because Towner claims the denial of this instruction deprived him of the
defense that he was acting in defense of another when he shot John Sr., if the district
court erred in not giving the proffered instruction we determine whether the error was
15
harmless using the constitutional standard set forth in State v. Ward, 292 Kan. 541, 256
P.3d 801 (2011); that is, whether we are persuaded beyond a reasonable doubt that the
error did not affect the outcome of the trial. See State v. Keyes, 312 Kan. 103, 107, 110,
472 P.3d 78 (2020).
Analysis
Towner argues that the instruction was legally appropriate because his defense to
the State's charge of attempted intentional second-degree murder was that he defended
Joe from John Sr. The court in State v. Barlett, 308 Kan. 78, 84, 418 P.3d 1253 (2018),
concluded that self-defense is a legally appropriate defense theory if the defendant is not
"already otherwise committing a forcible felony when he or she commits a separate act of
violence." Towner had just shot John Jr., a separate forcible felony. When Towner turned
and saw John Sr. in what he claimed was an altercation with Joe and fired at John Sr.,
Towner was not in the process of otherwise committing a forcible felony. So a defense of
another instruction was legally appropriate.
But the issue remains whether Towner's proposed defense of another instruction
was also factually appropriate. An instruction is factually appropriate if, viewed in a light
favoring the defendant, there was sufficient evidence supporting the instruction. See State
v. Salary, 301 Kan. 586, 593, 343 P.3d 1165 (2015); State v. Plummer, 295 Kan. 156,
163, 283 P.3d 202 (2012).
We consider both aspects of a defense of another claim to determine if the
instruction was factually appropriate. State v. Qualls, 309 Kan. 553, 557, 439 P.3d 301
(2019). In doing so, we view the evidence in the light favoring Towner. First, there must
be evidence to support a finding that Towner sincerely and honestly believed the use of
deadly force in the defense of Joe was necessary. Second, there also must be evidence to
support a finding that a reasonable person in Towner's circumstances would have
16
perceived the use of deadly force in defense of Joe was necessary. See Salary, 301 Kan.
at 593-94.
There is little evidence on Towner arriving at the sincere and honest belief that he
needed to shoot John Sr. in order to defend Joe. Towner testified in his direct
examination that after he shot John Jr.,
"I turned like 90 degrees, boom. And I see John Austin, Sr. on top of my friend.
Everything happened so quick, they didn't know I just got done shooting [John Jr.]. Like I
said, it was—a gunshot happens fast, pow-pow. You will look back and you won't even
realize what's going on and that's what happened. When he was on top of my friend, he
was punching him out . . . . My friend [is] on his back like trying to like, not get hit in the
face and stuff. So, I shot him once."
Moments later, as his direct examination continued, Towner testified that it was John
Sr.'s movement of apparently drawing a weapon that caused Towner to shoot in self-
defense, not in an effort to defend Joe.
"So, I just get done firing here. John Austin, Sr. looks back over his shoulder at me like
this and starts to do like this. (Witness indicating.) But it was the look in his face and he,
kind of like, made a movement towards his hip, so I just—it just came natural—I don't
want to say it came natural. Something in me told me shoot.
....
"I just finished shooting [John Jr.]. I turned to leave right about 90-degree[s]
away. I noticed what's going on with my friend and Austin, Sr. Austin, Sr., I guess he
realizes that I'm shooting into the house or shooting period and notices like—he does like
a sharp cut to look at me. Maybe he seen the gun in my hand, maybe he didn't. I'm
assuming he did because it's real shiny and chrome. You all seen that. And kinda like,
went to get off of [Joe]. But he looked like he was reaching though at the same time, like,
he was going for his own gun. And I don't know if he had one or if he didn't, because
everything transpired real quick.
17
"Like, just got done shooting this guy with a gun, and now you're reaching for a
gun. I got to think that you got a gun too."
What prompted Towner to shoot was his claim that John Sr. appeared to be
drawing a gun. Towner did not testify that he thought John Sr. was about to shoot Joe.
Rather, the only reasonable conclusion we can draw from Towner's testimony is that he
claimed that he shot John Jr. in defense of himself, not in defense of Joe.
Likewise, we do not believe a reasonable person in Towner's circumstances would
have perceived that the use of deadly force in defense of Joe was necessary. See State v.
Haygood, 308 Kan. 1387, 1405-06, 430 P.3d 11 (2018). The evidence was that John
Sr.—who Towner claimed was attacking Joe—was an elderly, injury-ridden man who
walked with a cane and who (according to Towner) was inebriated. John Sr. did not have
a gun when Towner shot him. And, in fact, Towner's real theory, as evidenced by his
testimony, was that he shot John Sr. in defense of himself, not in defense of another.
Besides, no reasonable person would conclude that Towner was justified in trying to kill
one of the claimed combatants in the altercation such as Towner described. There is no
evidence that Joe faced imminent death or great bodily harm in the claimed altercation.
See State v. Hernandez, 253 Kan. 705, 713, 861 P.2d 814 (1993) (holding district court
did not err when it declined to include a defense-of-another instruction because facts did
not show defendant's sister was in imminent danger). Accordingly, an instruction on the
defense of another was not factually appropriate.
Turning to the third step in the analysis, any error in not giving a defense-of-
another instruction would have been harmless. There was no reasonable probability, in
light of the entire record of the trial, that a jury instruction given in the form Towner
requested would have affected the outcome of the trial. Ward, 292 Kan. at 565. Without
recounting all of that testimony, we are satisfied that if there had been any error not
18
giving Towner's proposed instruction, it would not require reversal. See generally State v.
Killings, 301 Kan. 214, 223, 340 P.3d 1186 (2015).
The same can be said for Towner's argument that the jurors would have returned a
different verdict because they found him guilty of voluntary manslaughter of John Jr.
based on an imperfect defense but found him guilty of attempted second-degree murder
for shooting John Sr.
The State did not meet its burden to prove attempted aggravated robbery. Thus,
Towner did not kill John Jr. while attempting to commit aggravated robbery. As a result,
the State could not prove that Towner was guilty of felony murder. The State also failed
to prove Towner intentionally killed John Jr. but found Towner guilty of the lesser
included offense of voluntary manslaughter. To find Towner guilty of voluntary
manslaughter, the State had to prove Towner knowingly killed John Jr. on an
unreasonable but honest belief that circumstances existed that justified deadly force in
defense of a person.
Towner's unreasonable but honest belief that shooting John Jr. was justified to
defend himself has nothing to do with the State's evidence showing Towner attempted to
intentionally kill John Sr. The State presented substantial evidence supporting that
conviction. There is no reasonable probability that the district court's failure to include
the defense-of-another language in the jury instruction affected the verdict.
THE ADMISSION OF VARIOUS PHOTOS AT TRIAL
Towner challenges the district court's decision to admit into evidence photos of (1)
John Jr.'s bloody clothing, (2) various shell casings, (3) bullets found at the scene and
recovered from John Jr.'s clothing, and (4) Towner's gun and the magazine found with it.
19
He argues on appeal that these photos were irrelevant, immaterial, and cumulative, and
that their admission was unfairly prejudicial to him.
Standard of Review
All relevant evidence is admissible unless it is prohibited by statute, constitutional
provision, or court decision. See K.S.A. 60-407(f).
Evidence is relevant if it is both material and probative. Evidence is material when
the fact it supports is in dispute, and it is probative if it has any tendency to prove any
material fact. See State v. Miller, 308 Kan. 1119, 1167, 427 P.3d 907 (2018). As stated in
State v. McCormick, 305 Kan. 43, 47, 378 P.3d 543 (2016), "'Evidence is probative if it
furnishes, establishes, or contributes toward proof.'" We review de novo whether
evidence is material. We review for any abuse of discretion a ruling on whether proffered
evidence is probative. Miller, 308 Kan. at 1166.
Evidence may be relevant but unduly prejudicial. The district court in its
discretion may exclude evidence that is relevant if the court finds its probative value is
outweighed by its prejudicial effect. K.S.A. 60-445. As stated in State v. Thurber, 308
Kan. 140, 202, 420 P.3d 389 (2018): "[N]early all evidence the State presents in a
criminal case will be prejudicial against a defendant, so the proper inquiry is whether the
risk of unfair or undue prejudice substantially outweighed the evidence's probative
value." This determination is reviewed for any abuse of discretion. State v. Ingham, 308
Kan. 1466, 1469, 430 P.3d 931 (2018). Towner bears the burden of showing that the
district court abused its discretion in admitting such evidence. See State v. Tague, 296
Kan. 993, 1002, 298 P.3d 273 (2013).
Even though evidence is relevant evidence and not unduly prejudicial, it may be
challenged as being cumulative. Cumulative evidence is not automatically required to be
20
excluded from a trial. It is a matter of judicial discretion to determine if cumulative
evidence should be excluded. State v. Dupree, 304 Kan. 43, 65, 371 P.3d 862 (2016). The
failure to exclude cumulative evidence is error only if the district court abused its
discretion in refusing to exclude it. As stated in Dupree, 304 Kan. at 65, "Rarely has this
court found an abuse of discretion in the admission of photographic evidence in a murder
trial."
Finally, we review further to determine if any error was harmless. Here, on appeal
Towner invokes the nonconstitutional review standard by arguing in his brief that the
State must show that there was no reasonable probability that the admission of this
evidence contributed to the verdict. See Ward, 292 Kan. at 565.
Analysis
Towner's overarching argument is that these exhibits were improperly admitted
because, while all of them do establish events related to the shootings, there was no
dispute that Towner shot John Sr. and John Jr. Thus, these exhibits do not tend to prove a
material issue in the case. Moreover, he asserts that the photos were cumulative and
unduly prejudicial.
• Relevance
With respect to Towner's claim that he had already admitted being the shooter, our
Supreme Court stated in State v. Lee, 266 Kan. 804, 815, 977 P.2d 263 (1999): "We
acknowledge that the State has the right and, in fact the duty, to establish the elements of
the crime charged. The State also has an interest in presenting its case in its own way by
telling the story as the State wishes." As stated in State v. Johnson, 216 Kan. 445, 448,
532 P.2d 1325 (1975): "It is an established rule of law that an admission by a defendant
does not prevent the State from presenting separate and independent proof of the fact
21
admitted." For example, in State v. Clark, 261 Kan. 460, 477, 931 P.2d 664 (1997), the
court noted:
"Even where the defendant concedes the cause of death, the prosecution has the burden to
prove all the elements of the crime charged and photographs to prove the elements of the
crime, including the fact and manner of death and the violent nature of the crime, are
relevant and admissible. [Citations omitted.]"
Moreover, photos showing the "'extent, nature, and number of wounds inflicted are
generally relevant in a murder case.'" State v. Burnett, 293 Kan. 840, 853, 270 P.3d 1115
(2012) (quoting State v. Parker, 277 Kan. 838, 847, 89 P.3d 622 [2004]); see State v.
Foster, 229 Kan. 362, 367, 623 P.2d 1360 (1981) (holding photos of deceased victim
showing bruising were relevant to explain cause of death). Here, we conclude the photos
of John Jr.'s bloody clothing were relevant.
The State maintains that the photos of the gun were relevant to support the State's
theory that Towner did not act in self-defense because they show his gun and show that
Towner hid the gun under a mattress after the shooting. The State also argues that the
photos of the shell casings and bullets were linked to Towner's gun, so they were relevant
to prove Towner used the gun in the shooting.
The district court did not abuse its discretion when it admitted the photos of
Towner's gun, which was the gun used by Towner to shoot John Sr. and John Jr. Because
the photos also tended to prove the elements of the charged crimes, the photos of the gun
were material and probative, and the district court did not err when it ruled the evidence
was relevant. See State v. Scott-Herring, 284 Kan. 172, 176-77, 159 P.3d 1028 (2007)
(holding that a photo of defendant holding a similar gun to the one used in the crime was
relevant).
22
Similarly, the photos of the bullets and shell casings were relevant. Towner
admitted to carrying a gun and testified as to how many rounds he carried that day. John
Sr. testified that he recalled hearing two shots as he ran away and was hit once. He
recalled hearing several more shots while Towner and Joe were inside John Sr.'s house.
Robinson testified that he heard four shots, and Towner testified that he fired three shots
at John Jr. and one at John Sr. Because the testimony conflicted as to how many shots
Towner fired and where he fired the shots, the evidence was relevant. Our standard or
review on the admission of this evidence is the abuse of discretion standard. See State v.
Boysaw, 309 Kan. 526, 539, 439 P.3d 909 (2019). The district court did not abuse its
discretion when it admitted this evidence because a reasonable person would find that the
photos of the shell casings and the bullets were relevant.
• Undue Prejudice
Photos showing a victim's gunshot wounds are not automatically excluded as
being too prejudicial. See State v. Williams, 308 Kan. 1320, 1334, 429 P.3d 201 (2018)
(holding district court did not abuse its discretion when it admitted photos of gunshot
wounds). We have examined the photos of John Jr.'s clothing. They show blood stains
and bullet holes. But they are not so gory as to be calculated to inflame the passions of
the jurors. The photos showed the nature and extent of John Jr.'s injuries. They were
certainly not as graphic as the photos of John Sr. in the emergency room or the photos of
John Jr.'s body at the autopsy, none of which is challenged here on appeal. See State v.
Salem, 230 Kan. 341, 347, 634 P.2d 1109 (1981) (holding admission of photos depicting
bloodstained pillow and sheets were relevant to cause and manner of death and were not
unfairly prejudicial). We conclude that the probative value of the photos of John Jr.'s
clothing outweighed any possible prejudicial effect.
With respect to the photos of the shell casings, bullets, and Towner's gun, the
district court did not err in admitting them into evidence over Towner's claim of undue
23
prejudice. See State v. Francis, 282 Kan. 120, 136, 145 P.3d 48 (2006) (holding
admission of gun found at defendant's house possibly used by defendant to commit
murder was not unfairly prejudicial because it was not designed to elicit an emotional
response from jury). The photos were of the shell casing found at John Sr.'s house and the
projectile found in John Sr.'s kitchen, as well as Towner's gun which was found under his
mattress. Introduction of this evidence was not calculated to appeal to the jurors'
emotions. The photos were not designed to elicit, nor would they have generated, undue
prejudice from the jurors. A reasonable judicial officer would adopt the ruling that the
district court did here.
• Cumulative
At trial, Towner objected to photos of shell casings and bullets found at the scene
as being cumulative. We are not persuaded by Towner's argument on appeal that the
admitted photos were cumulative. The Kansas Supreme Court defined cumulative
evidence as evidence of the same kind to the same point, which is determined based on
its "'kind and character.'" State v. Meggerson, 312 Kan. 238, 257, 474 P.3d 761 (2020)
(quoting State v. Dupree, 304 Kan. 43, 65, 371 P.3d 862 [2016]). Besides, cumulative
evidence is not in and of itself objectionable. The trial court has the discretion to admit or
exclude cumulative evidence. Meggerson, 312 Kan. at 257. A challenge that evidence is
cumulative must be based on the evidence being so repetitive and unnecessary that it is at
the point of becoming unduly prejudicial. State v. Hickles, 261 Kan. 74, 85, 929 P.2d 141
(1996).
The photos of the shell casings added useful context for the jury by showing where
the officers found them. The several pictures of the bullets were not repetitive and
unnecessary because they depict different aspects of the bullets, such as their identifying
characteristics and markings and the locations where they were found.
24
Here, the State admitted the physical gun used by Towner and several photos of
the same gun which was found under Towner's mattress. Appellate courts rarely find an
abuse of discretion in the admission of photographic evidence in a murder trial.
Moreover, these photos of Towner's gun showed different aspects of the gun which the
officers found under a mattress. See State v. Rodriguez, 295 Kan. 1146, 1158, 289 P.3d
85 (2012) (finding no abuse of discretion for admitting four photos of a victim's autopsy
because each provided additional context the others did not and showed injuries at
different angles). The photos of the gun provided additional context that the physical gun
would not provide. The district court did not abuse its discretion when it found these
photos were not cumulative.
• Harmless Error
The State argues that if there was any error in the admission of this photographic
evidence, then it was harmless and asks us to affirm Towner's convictions. Towner
argues that the errors were not harmless because the evidence garnered sympathy for the
victims and prejudiced his defense. He asks the panel to reverse and order a new trial.
When an error implicates a statutory but not federal constitutional right, to be
deemed harmless the party benefiting from the error must persuade the court that there is
no reasonable probability that the error affected the trial's outcome in light of the entire
record. State v. McCullough, 293 Kan. 970, 981, 270 P.3d 1142 (2012). Here, the burden
to prove harmlessness falls on the State. State v. Brown, 298 Kan. 1040, 1051, 318 P.3d
1005 (2014).
Towner concedes in his appellate brief that his constitutional rights were not
implicated by the evidence, so the harmless error standard in K.S.A. 2020 Supp. 60-261
applies. Towner states: "As the present issue alleges that the District Court erroneously
25
admitted irrelevant and prejudicially cumulative evidence, the State must show that there
is no reasonable probability that the error affected the outcome of Mr. Towner's trial."
As determined in State v. Gilliland, 294 Kan. 519, 542, 276 P.3d 165 (2012),
issues relating to the application of a rule of evidence and not a complete denial of a
defense warrant application of the harmless error standard. Courts disregard all errors that
do not affect a party's substantial rights. State v. Anderson, 308 Kan. 1251, 1258, 427
P.3d 847 (2018).
Towner does not contend that the evidence was insufficient to support his
convictions. His contention is that had the State not repeatedly focused on the photos of
John Jr.'s bloody clothing and the instrumentalities of these crimes, the jury would have
been swayed by his claim of self-defense.
Our examination of the record fails to disclose any significant focus on these
photo exhibits compared to the State's attention to the other evidence in the case. For
example, in the State's closing argument and rebuttal the prosecutor made no reference
whatsoever to these exhibits. In the face of the testimony of the State's witnesses, the
many inconsistencies in Towner's testimony, the fact that Towner did not actually see
either victim with a weapon, and the evidence that negated the notion that either victim
possessed or was carrying a weapon, we are satisfied that there was no reasonable
probability that admission of these photos swayed the jury in deciding whether Towner
acted in self-defense. We are satisfied that any claimed error in the admission of these
exhibits was harmless, and there is no reasonable probability that their admission affected
the outcome of the trial.
Affirmed.
26