State v. Richard

NOT DESIGNATED FOR PUBLICATION

No. 122,568

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT DARNELL RICHARD JR.,
Appellant.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; AARON T. ROBERTS, judge. Opinion filed August 27,
2021. Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., MALONE, J., and BURGESS, S.J.

PER CURIAM: Robert Darnell Richard Jr. appeals his convictions of intentional
second-degree murder and robbery involving the shooting death of his ex-girlfriend,
Krystal Swygert. Among Swygert's last words before she died in surgery from a gunshot
wound were that Richard was the person who shot her. Richard's main claim on appeal is
that the district court erred by admitting Swygert's identification into evidence as a dying
declaration. Richard also claims the district court erred by admitting into evidence some
of his Facebook messages about the incident and a surveillance video showing Richard
and Swygert together just a few minutes before the shooting.

1
 This appeal also presents sentencing issues. The district court partially granted
Richard's motion for a downward durational departure sentence, but Richard claims the
district court should have granted a greater departure. The State cross-appeals, claiming
the district court lacked substantial and compelling reasons to grant any departure.
Finding no reversible error, we affirm the district court's judgment in all respects.

FACTUAL AND PROCEDURAL BACKGROUND

A shooting outside a Burger King and a Taco Bell

On December 22, 2018, while working her late afternoon shift at a Burger King in
Kansas City, Maria del Real witnessed an altercation between Richard and Swygert. Real
saw the pair sitting at a table together; Swygert was wearing a pink hat. The two began
talking, possibly arguing, but eventually stepped outside where they engaged in a
physical fight. Richard came back into the restaurant and asked Real about the
restaurant's Wi-Fi. Swygert also came back in and sat down by herself at a table. Richard
eventually joined her at the table. He then physically took Swygert's hat off her head, set
the hat on the table, and left the restaurant. Swygert followed Richard out of the
restaurant about a minute later.

Meanwhile, Mary Hittle and her children were in a vehicle in the drive through
line of a nearby Taco Bell. While waiting for their order, Hittle heard a couple of "bang-
bang" noises that she at first thought were backfiring from a car. When Hittle reached the
drive through window, a Taco Bell employee told her that someone had just entered the
Taco Bell with a gunshot wound. Hittle, an emergency room nurse with around 20 years'
experience, exited her car and ran into the Taco Bell to assist. Once inside, Hittle found
Swygert rolling on the floor of the restaurant, moaning in pain.

2
 Jeff Conner was already inside the Taco Bell when Swygert rushed in saying she
was shot. Swygert made her way to the front register before collapsing on the floor.
Conner saw a wound on the left side of Swygert's abdomen and used napkins to try to
stop any bleeding. After a few minutes Hittle arrived to help. She noticed a clear liquid—
not blood—coming from the wound but did not see an exit wound. Hittle tried to get
Swygert to calm down and slow her breathing to minimize the risk of further damage as
she believed that Swygert was likely bleeding internally.

Swygert eventually screamed and writhed in pain. Conner asked Swygert who shot
her, to which she responded that it was her "ex-boyfriend, Robert Richard," and then she
repeated Richard's name several times. Hittle also heard these statements. According to
Conner, Swygert appeared "very worried," and she prayed to Jesus for help throughout
the incident. Emergency medical services (EMS) soon arrived at the scene.

Officers Brandon Nemec and Daniel Floyd also responded to the incident. When
they arrived at the Taco Bell, Swygert was on the floor with EMS personnel who
administered medical care. The officers asked Swygert who shot her. Swygert at first said
it was her "boyfriend," and then identified him as her "ex, Robert." When asked for a last
name and birthdate for Richard, Swygert provided both. She also provided the officers
with a description of Richard and the clothes he was wearing. Nemec broadcasted
Swygert's identification of Richard to other officers.

The EMS team took Swygert to a nearby hospital, but she died during surgery.
Forensic pathologist Dr. Altof Hosain determined that Swygert's death was caused by the
single gunshot wound to her side and the internal bleeding. Hosain found that Swygert
was under the influence of methamphetamine at the time of her death.

Kansas City Police Captain Angela Garrison also responded to the incident and
participated in the ensuing investigation. While Garrison was still at the scene, Theo

3
Quiroz contacted her and identified himself as Richard's brother. According to a police
affidavit, Quiroz told Garrison that Richard confessed that "he shot 'the girl' after she ran
up to him on the street and threatened him with a knife." He also later arranged a three-
way call to allow Garrison to talk to Richard. Garrison hoped the conversation would
persuade Richard to turn himself in for questioning.

Police gathered evidence from the crime scene and from the nearby Burger King,
including surveillance footage showing Richard and Swygert together at the Burger King
right before the shooting. Police also obtained videos from Taco Bell depicting the scene
there. An officer also recovered a shell casing from a bullet. Detective Tiffany Burgdorf
obtained a warrant for the Facebook records of Swygert, Richard, and a third person. The
three accounts were also public and accessible by simply visiting the pages. In one of
Richard's Facebook messages dated the day after Swygert's death, he explained that he
would never hurt anyone unless his life was in danger and he mentioned that a lady had
chased him, tried to stab him, and pushed him into moving cars.

During the three-way phone call between Richard, Garrison, and Quiroz, Richard
admitted that he was at the Burger King with Swygert and claimed that he approached
Swygert and took her hat because she had taken his phone charger. Richard also claimed
that when Swygert left the Burger King, he followed her down the sidewalk but when he
heard a gun go off nearby, he ran away. Richard also told Garrison that Swygert was on
drugs but "'he didn't know her like that.'" Richard later told the police that he did not
know Swygert very well. But officers discovered evidence showing Richard and Swygert
were at some point involved in a romantic relationship. This evidence included
conversations between Richard and Swygert on Facebook Messenger and photographs of
them in an intimate position in bed. The police later arrested Richard in Wichita.

4
Proceedings in district court

On January 28, 2019, the State charged Richard with one count of intentional
second-degree murder, but the State later added one count of robbery based on Richard
taking Swygert's hat from her person. Before trial, Richard moved to exclude Swygert's
statements at the Taco Bell identifying Richard as the person who shot her. The district
court considered the motion at the start of trial and found that the statements were
admissible as dying declarations. The district court also found that Swygert's statements
to the police officers were admissible under the continuing emergency doctrine. But the
district court rejected the State's alternative claim that the statements were admissible
under the excited utterance exception to the hearsay rule.

At trial, Hittle, Conner, Nemic, Floyd, Garrison, Hosain, Real, Burgdorf, and other
witnesses testified for the State. The State also introduced exhibits including the Taco
Bell videos, the Burger King surveillance videos, and the Facebook messages. The videos
and witness testimony showed that Swygert staggered into the Taco Bell with a gunshot
wound about 5:07 p.m., about a minute or two after she left the Burger King for the final
time. In the State's opening statement, the prosecutor suggested a possible motive for the
shooting was that Richard found out that Swygert was pregnant with someone else's
child, but the State did not pursue this theory during the rest of the trial.

Richard did not testify at trial, nor did he call any witnesses. In his closing
argument, he contended that the State failed to present sufficient evidence to prove he
intentionally killed Swygert or that he even shot Swygert. Richard challenged the
reliability of Swygert's identification of him after being shot, suggesting she was high and
losing consciousness at the time. He also contended that the State's evidence showed that
he only committed theft, not robbery.

5
 At the jury instruction conference, the district court found that no lesser offense
instructions were appropriate on the homicide charge. Defense counsel agreed that he
could not think of any lesser offenses that would apply and rejected an instruction on
self-defense. The district court gave an instruction for theft as a lesser included offense of
robbery. The jury convicted Richard of second-degree murder and robbery.

Sentencing

A presentence investigation (PSI) report revealed Richard had a criminal history
score of B based on two person felony convictions in 2003. Richard's standard
presumptive prison sentence for second-degree murder was 586 months' imprisonment.
Richard moved for a durational departure, arguing Swygert was the aggressor, his prior
convictions were old, and his prior person felonies—robbery and conspiracy to commit
robbery—arose out of one incident. Richard asked that his prior person felonies be
treated as one person felony, to allow him to receive a sentence for an offender with a
criminal history score of C, which would be 272 months' imprisonment. The State
opposed Richard's departure motion, recommended the standard sentence for each count,
and asked that the sentences for each count run consecutively.

The district court granted Richard's departure motion in part. The district court
split the difference between the presumptive term for the homicide of 586 months and
Richard's request for 272 months and sentenced Richard to 429 months' imprisonment.
The district court also imposed a concurrent sentence of 32 months' imprisonment for the
robbery. The district court found the age of Richard's criminal history and the lack of
similar offenses in his criminal history provided substantial and compelling reasons to
depart from the presumptive sentence for the homicide. The district court also found the
departure was warranted based on what the court believed was a disproportionate
difference in the term of the presumptive sentence for an offender with a criminal history

6
score of C versus B. Richard timely appealed the district court's judgment. The State
cross-appealed, challenging the legality of the departure sentence.

DID THE DISTRICT COURT ERR IN ADMITTING SWYGERT'S STATEMENTS IDENTIFYING
RICHARD AS THE PERSON WHO SHOT HER?

Richard first claims the district court erred in admitting Swygert's statements at the
Taco Bell identifying Richard as the person who shot her. More specifically, Richard
argues that the district court erroneously found that Swygert's statements identifying him
as the shooter were dying declarations under K.S.A. 2018 Supp. 60-460(e). He also
argues that the district court erred by admitting the statements to the police officers under
the continuing emergency doctrine. Richard also contends that the admission of the
evidence violated his rights under the Confrontation Clause of the Sixth Amendment to
the United States Constitution. Finally, he argues the admission of this evidence was not
harmless error.

The State argues that Swygert's statements were properly admitted as either dying
declarations or an excited utterance. As for Richard's Confrontation Clause challenge, the
State asserts that Richard failed to preserve this issue because he did not object to the
statements at trial on constitutional grounds. In any event, the State argues that the
statements were nontestimonial, and the admission of the evidence did not violate the
Confrontation Clause. Finally, the State asserts that any error was harmless.

Preservation and standard of review

The State contends that Richard's constitutional claim is not preserved for appeal.
The State asserts that Richard objected to the evidence at trial only on hearsay grounds
and should be precluded from raising an appellate argument based on the Confrontation
Clause. Cf. State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002) (finding hearsay
objections at trial inadequate to preserve Confrontation Clause argument for appeal).

7
 "K.S.A. 60-404 dictates that evidentiary errors shall not be reviewed on appeal
unless a party has lodged a timely and specific objection to the alleged error at trial."
State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). Before trial, Richard moved to
exclude Swygert's statements at the Taco Bell identifying him as the person who shot her,
arguing the statements were hearsay and violated his constitutional rights under the Sixth
Amendment's Confrontation Clause. The district court considered the motion before voir
dire and denied the motion on its merits, finding the dying declaration exception to the
hearsay rule applied. The district court also found that Swygert's statements to the police
were admissible under the continuing emergency doctrine.

At trial, Richard objected to the statements during Hittle's testimony based on
hearsay. At a sidebar discussion, Richard added that he was "rais[ing] all the issues in
[his] motion in limine." The district court overruled the objection and noted Richard's
continuing objection. In a sidebar discussion during Connor's testimony, Richard stated
that he wanted to "raise all the same issues" that he raised with Hittle's testimony.
Although Richard did not specifically state that his trial objections were grounded in the
Confrontation Clause, we find there was a sufficient reference to his motion in limine and
the constitutional challenge is preserved as to the testimony of Hittle and Connor.

Richard also objected to the admission of Swygert's statements during Nemec and
Floyd's testimony but he at no point argued that those objections were based on the Sixth
Amendment. During Nemec's testimony, Richard simply stated, "Objection, hearsay."
Likewise, during Floyd's testimony, Richard objected to the evidence, alleging it was
hearsay and cumulative. Thus, we find that Richard's Confrontation Clause argument is
not properly preserved as to the testimony of the two police officers.

Turning to our standard of review, a court's consideration of the admissibility of
evidence can require application of statutory rules controlling the admission and
exclusion of certain types of evidence. Whether a particular legal principle or statutory

8
rule governs the admission of evidence is a question of law subject to de novo review. A
principle or rule, however, is applied as a matter of law or as an exercise of the district
court's discretion, depending on the applicable rule. State v. Miller, 308 Kan. 1119, 1166,
427 P.3d 907 (2018).

In State v. Reed, 302 Kan. 390, 401, 352 P.3d 1043 (2015), our Supreme Court
stated that an appellate court "review[s] a district judge's decision on the admission of
hearsay evidence for an abuse of discretion." Judicial discretion is abused if a court's
action is (1) arbitrary, fanciful, or unreasonable, (2) based on an error of law, or (3) based
on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). The Reed
court added that "[i]f the issue is whether the trial court complied with specific statutory
requirements for admitting evidence or whether an evidentiary ruling violated a
defendant's constitutional rights, our review is de novo." 302 Kan. at 402.

Dying declarations exception to the hearsay rule

Our Legislature defines hearsay evidence as "[e]vidence of a statement which is
made other than by a witness while testifying at the hearing, offered to prove the truth of
the matter stated." K.S.A. 2018 Supp. 60-460. Unless a valid exception applies, hearsay
evidence is inadmissible. K.S.A. 2018 Supp. 60-460. The concept of the rule precluding
hearsay evidence is based on the general principle "that when a statement is offered as
evidence of the truth of the matter stated, the credibility of the declarant is the basis for its
reliability, and the declarant must therefore be subject to cross-examination." State v.
Becker, 290 Kan. 842, 846, 235 P.3d 424 (2010) (citing Boldridge v. State, 289 Kan. 618,
634, 215 P.3d 585 [2009]).

Dying declarations are a deeply rooted exception to the hearsay rule with origins
in the common law. The historical rationale for admitting a person's dying declarations
into evidence was that the realization of impending death serves as an incentive to be

9
truthful equal to that of taking an oath. Thurston v. Fritz, 91 Kan. 468, 471, 138 P. 625
(1914). In Kansas, the admission of dying declarations was at first restricted to criminal
cases involving homicide, but the rule was later extended to civil cases. 91 Kan. at 474-
75.

The dying declarations exception to the hearsay rule is codified at K.S.A. 2018
Supp. 60-460(e). Under this exception, a court may allow a jury to hear an out-of-court
statement made "by a person unavailable as a witness because of the person's death if the
judge finds that it was made: (1) Voluntarily and in good faith; and (2) while the
declarant was conscious of the declarant's impending death and believed that there was
no hope of recovery." K.S.A. 2018 Supp. 60-460(e).

In ruling on Richard's motion in limine to exclude Swygert's statements at the
Taco Bell, the district court made extensive findings, based on Hittle's preliminary
hearing testimony, that Swygert made her statements voluntarily and in good faith and
that she was conscious of her "imminent death" when the statements were made. More
specifically, the district judge found:

"I don't think there's any question, whatsoever, that the victim here—it was voluntar[y]
and in good faith. There's no doubt [Swygert] was shot, struggling in a lot of pain,
wouldn't have had time to, with the condition she was in, by all accounts, to try and
deceive and connive trying to come up with some kind of story to get somebody in
trouble. So I do find this was made voluntarily and in good faith.
"[A]s far as whether or not she believed that she was mortally injured and would
have no ability to recover from those injuries. That's a tough question for any fact-finder
or Court to consider when that person eventually dies because it almost requires lay
people to have extensive medical knowledge. . . . Most of this is from Ms. Hittle's
testimony in the preliminary hearing when Ms. Hittle comes in, I think she said a lady
walked into Taco Bell and had been shot, but by the time she came in, she was no longer
walking, she was on the ground, not standing up, she testified that she was moaning and
grimacing, groaning in pain, that's a quote.

10
 "She also testified there was a man standing over her holding a, quote, pressure
dressing. Common sense tells us that someone is doing that when some type of liquid is
emanating or oozing from your body, stopping something from coming out of your body,
putting pressure. Usually it's blood, in this case looks like it may not have been. She kept
saying over and over it hurts, it hurts, she was not talking normally and she stated that she
was breathing really fast like hyperventilating . . . . Again, any liquid oozing out of your
body, out of a hole in your stomach, I don't believe would be good. The nurse, Ms. Hittle,
tried to calm her down by slowing her breathing because the nurse testified she thought
that was making things worse, breathing really fast, wasn't slowing down and she said it
didn't work. She continued to breath quite rapidly. So we have someone who, I don't
know if Ms. Hittle identified herself as a nurse, but she tried to order the victim to slow
down and either she was unwilling or unable to. That certainly seems to show a sign of
distress there.
"Also, since the victim was not a doctor, then she's not able to know with any
type medical certainty to know the damage from a gunshot. We can agree, anyone getting
shot, especially in your abdomen, is not a good thing, no matter what type of gun or
caliber of bullet or anything like that. So there's certainly some uncertainty when it comes
to Miss Swygert's medical knowledge and knowing exactly what was going on with her
and the damage done to her body. We're allowed to impute common sense into the
situation.
"Look, she was not shot in the foot or the hand, it was not a grazing shot, it was a
shot to the abdomen that was extremely painful to the victim. She was riling back and
forth in pain, couldn't slow her breathing down, saying it hurts, it hurts, I believe that any
reasonable person shot in the stomach accompanied by extreme pain would be in fear of
imminent death . . . . Nobody wants to get shot. I'm sure everyone who gets shot, does get
scared, but I don't think people are sitting there saying, well, I only got shot once in the
stomach, I'll probably live. I think any reasonable person would be in fear of imminent
death. No one there was telling her that she would be fine, that she was going to make it.
There was no record of any reassurance by anyone, look, you'll be okay, we'll get you to
the hospital, there's nothing like that. . . .
"Based upon the totality of the circumstances, I'm going to find that the dying
declaration exception to the confrontation clause does apply and that Mr. Richard's rights
are not violated so the motion in limine is denied upon that."

11
 On appeal, Richard does not challenge the district court's finding that Swygert's
statements were made voluntarily and in good faith. But Richard argues that "the
evidence here does not show that [Swygert] believed she was facing impending death."
He claims that Swygert's actions of "moaning and groaning" and "rolling back and forth
saying 'it hurts'" were not enough to show Swygert believed she was dying. Richard also
emphasizes that Swygert was not bleeding but instead was leaking a clear liquid and she
did not lose consciousness while she was still at the Taco Bell.

The Kansas Supreme Court addressed the dying declarations exception to the
hearsay rule in State v. Jones, 287 Kan. 559, 197 P.3d 815 (2008). In that case, a victim
sustained multiple gunshot wounds which left him paralyzed in all four limbs. While
being transported to the hospital, the victim asked one of the two paramedics who were
working on him whether he was going to die. The paramedic did not directly respond to
the question, but he spoke with the victim to try to keep him awake and to confirm that
his airway was open. The paramedic asked the victim if he knew who had shot him, and
the victim responded by saying the defendant's nickname. The victim ultimately died
from complications caused by the paralysis.

The district court allowed the victim's identification of the defendant to be
admitted into evidence, finding the victim had reason to believe he was dying at the time
he made the statement. On appeal, our Supreme Court agreed that the evidence supported
the district court's finding. The court noted the victim "had sustained multiple gunshot
wounds which left him paralyzed in all four limbs. Pointedly, [the victim] asked one of
the two paramedics who were working on him in the ambulance whether he was going to
die, manifesting an awareness that he was on the brink of death." 287 Kan. at 564.

In State v. Bonner, No. 102,053, 2010 WL 3211707 (Kan. App. 2010)
(unpublished opinion), the defendant stabbed the victim, who called out to a neighbor 30
minutes later. The neighbor looked in the apartment and saw the victim lying on the floor

12
with his legs and feet "thrashing." 2010 WL 3211707, at *1. The victim told the neighbor
he had been stabbed and that it was "'[t]hat black kid, Rico'" who did it and that "'he
didn't think he was going to make it.'" 2010 WL 3211707, at *1. Police arrived and saw
the victim was in "a great deal of distress and could not move." 2010 WL 3211707, at *1.
When asked by police who stabbed him, the victim responded "'Rico.'" 2010 WL
3211707, at *1. The police asked the victim if he was referring to the defendant and he
said, "'Yeah.'" 2010 WL 3211707, at *1 The victim died in the hospital from his wounds.

On appeal, the defendant challenged the victim's statements to the police as
inadmissible hearsay. This court found that the statements qualified as dying declarations,
noting that the victim had sustained multiple stab wounds and had told his neighbor that
he did not think he would make it. 2010 WL 3211707, at *4. This court also observed
that the victim died two hours later from the stab wounds.

Our Supreme Court most recently addressed the dying declarations exception to
the hearsay rule in Reed. In that case, the victim was shot one time in the stomach from
close range. Immediately after the shooting, the victim told his sister and police officers
that he was shot by someone named "'Micky.'" 302 Kan. at 393. The victim later died at
the hospital. At a pretrial hearing to decide whether the victim's statements would be
admissible as dying declarations, the district court found that when the victim made the
statements, he "'had difficulty speaking, difficulty breathing, he was coughing up blood,
he was very "panicked," and he knew he had been shot.'" 302 Kan. at 394. The district
court also found the victim "'was writhing in pain'" and was "'pretty much hysterical.'"
302 Kan. at 394-95. Observing that the victim died a short time later at the hospital, the
district court found there was no question "'the facts support that he was conscious and
very aware of his impending death and he had no hope of recovery.'" 302 Kan. at 395.

On appeal, the defendant asserted there was an inadequate factual basis for the
district court's finding that the victim was conscious of his impending death and believed

13
there was no hope of recovery when he made his statements. The defendant argued that
the victim was trying to stand up when he made the statements and pointed out that there
was no testimony that police officers or emergency medical personnel explicitly informed
the victim that he was dying. Our Supreme Court rejected these arguments and observed
that the district court's findings were supported by the evidence. 302 Kan. at 403. Our
Supreme Court summarized the district court's finding and observed that appellate courts
do not reweigh the evidence. 302 Kan. at 404. Without engaging in any further analysis,
our Supreme Court found that "it cannot be said the district judge's decision to allow
testimony about [the victim's] out-of-court statements as dying declarations was
'arbitrary, fanciful, or unreasonable.'" 302 Kan. at 404.

Returning to our facts, Swygert entered the Taco Bell with a serious gunshot
wound to her abdomen. She collapsed on the floor and was screaming and writhing in
pain. She was also having difficulty breathing. Hittle, an emergency room nurse, believed
that Swygert was likely bleeding internally. Connor testified that Swygert appeared "very
worried," and she prayed to Jesus for help throughout the incident. When asked who shot
her, Swygert responded that it was her "ex-boyfriend, Robert Richard." She repeated his
name several times and described Richard to the police. EMS was called to the scene to
take Swygert to the hospital. She died a brief time later in surgery.

Richard's case is distinguishable from Jones and Bonner because the victims in
those two cases verbally expressed a concern about surviving their injuries. We do not
have that fact here. Richard focuses on the fact that Swygert "did not make any statement
indicating she thought she was going to die" to support his assertion that the "evidence
does not show that [Swygert] believed she was facing death" when she identified Richard
as the person who shot her.

Richard's case would indeed be easier to decide if Swygert had verbalized a
concern to someone about whether she would survive her injuries. But the absence of this

14
evidence should not prevent a court from finding that Swygert's statements qualify as
dying declarations under K.S.A. 2018 Supp. 60-460(e). In Reed, a case with similar facts
to Richard's, the victim suffered a gunshot wound to the abdomen. The victim did not ask
any questions or make any statements to anyone expressing a concern that he might die
from his injuries. But the district court observed the victim was writhing in pain, had
difficulty breathing, was panicked, and "'knew he had been shot.'" 302 Kan. at 394. Based
on the evidence, the district court found the victim was conscious of his impending death
and had no hope of recovery. On appeal, our Supreme Court expressed no hesitancy in
finding the victim's statements were supported by the evidence and were admissible as
dying declarations.

In Richard's case, the district court found that "any reasonable person shot in the
stomach accompanied by extreme pain would be in fear of imminent death." We agree
with the district court's common-sense finding. A victim does not have to verbalize an
awareness that his or her death is imminent for a statement to be admissible as a dying
declaration. Instead, the necessary state of mind can be inferred from the facts and
circumstances surrounding the declaration.

Cases from other states support this conclusion. In State v. Owens, 368 Wis. 2d
265, 878 N.W.2d 736 (Wis. App. 2016), police responded to a reported shooting. Officers
found the victim lying on the ground suffering from a gunshot wound to the chest. The
victim was "pale, gasping for air, and was going in and out of consciousness." 368 Wis.
2d at 270. Police asked the victim who shot him, and the victim identified the shooter as
the defendant. The victim died in the ambulance on the way to the hospital.

At trial, the victim's statement identifying the defendant as his killer was admitted
into evidence as a dying declaration. On appeal, the Wisconsin Court of Appeals found
no error, stating: "For a statement to be admissible as a dying declaration, the declarant
need not specifically say their death is imminent." 368 Wis. 2d at 273. The court stated

15
that the declarant's belief of impending death can be inferred from the "'nature and extent
of the wounds inflicted.'" 368 Wis. 2d at 274. The court then reasoned that "[b]eing shot
in the chest would cause any rational adult to fear imminent death." 368 Wis. 2d at 274.
The court further explained that the inference was even stronger considering the victim
was gasping for air and going in and out of consciousness.

"'A declarant does not have to express, in direct terms, his awareness of his
condition for his statement to be admissible as a dying declaration. The necessary state of
mind can be inferred from the facts and circumstances surrounding the declaration.'"
State v. Brown, 421 S.C. 337, 344, 806 S.E.2d 724 (S.C. App. 2017); see also Bush v.
State, 295 So. 3d 179, 203 (Fla. 2020) ("'[I]t is not necessary that the declarant "make
express utterances" that he would never recover'" for dying declaration to be admissible.);
Chapman v. State, 196 So. 3d 322, 334 (Ala. Crim. App. 2015) (declarant's belief that
death was imminent can be inferred from the declarant's statements, condition, or
conduct); Wiggins v. State, 295 S.E.2d 684, 685 (Ga. 2014) ("The testimony which is
introduced as a dying declaration does not have to contain any statement by the deceased
to the effect that he is conscious of his impending death at the time the declaration is
made; this may be inferred from the nature of the wounds and other circumstances.");
State v. Largo, 278 P.3d 532, 539 (N.M. 2012) ("'[I]f it can reasonably be inferred from
the state of the wound or the state of the illness that the dying person was aware of his [or
her] danger, then the requirement of impending death is met.").

Swygert had collapsed with a gunshot wound to her abdomen, and EMS was
transporting her to the hospital. Any reasonable person would know that such a wound
could be fatal. We find it significant that Swygert was praying to Jesus throughout the
incident. Conner testified that "some of her last words [were] pray[ers]." Although
Swygert did not ask any questions or make any statements indicating her awareness that
death was imminent, we find her necessary state of mind can be inferred from the
circumstances. The district court's extensive findings are supported by the evidence in the

16
record. Given the circumstances surrounding Swygert's death, including her physical and
emotional state at the Taco Bell, we conclude the district court did not err in admitting
Swygert's statements as dying declarations under K.S.A. 2018 Supp. 60-460(e).

Finally, the State argues alternatively that Swygert's statements at the Taco Bell
were admissible under the excited utterance exception to the hearsay rule at K.S.A. 2018
Supp. 60-460(d)(2). But the district court considered and rejected this claim, and the State
did not cross-appeal from this adverse ruling. Thus, we lack jurisdiction to address the
State's alternative claim under the excited utterance exception. See Cooke v. Gillespie,
285 Kan. 748, 755, 176 P.3d 144 (2008) ("We have clearly held that before an appellee
may present adverse rulings to the appellate court it must file a cross-appeal.").

Confrontation Clause challenge

The Sixth Amendment to the United States Constitution states: "In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him." The Confrontation Clause bars admission of "testimonial hearsay."
Crawford v. Washington, 541 U.S. 36, 53, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Generally, if a statement is found to be testimonial it must be excluded as evidence unless
a court finds that the declarant is unavailable as a witness and the defendant had a prior
opportunity to cross-examine the declarant. Reed, 302 Kan. at 402-03.

Richard argues that Swygert's statements in the Taco Bell were testimonial and
because she was not subject to cross-examination, the admission of her statements
violated his rights under the Confrontation Clause. But as our Supreme Court noted in
Reed, the United States Supreme Court has long recognized "that dying declarations
merit special handling." 302 Kan. at 403; see Crawford, 541 U.S. at 56 n.6 (noting
existence of exception without deciding whether it was specifically incorporated in the
Sixth Amendment). And our Supreme Court stated in another post-Crawford case that

17
"we are confident that, when given the opportunity to do so, the [United States] Supreme
Court would confirm that a dying declaration may be admitted into evidence, even when
it is testimonial in nature and is unconfronted." Jones, 287 Kan. at 569.

Still, the United States Supreme Court has never expressly ruled that dying
declarations provide an exception to a defendant's constitutional rights under the
Confrontation Clause. Swygert's statements at the Taco Bell were made to both lay
witnesses and the police. As the Crawford Court explained, statements to police are often
testimonial. 541 U.S. at 52. But under one of the recognized exceptions, a statement to
police may be deemed nontestimonial and, thus, admissible if the court finds that the
police's primary purpose of eliciting the statement was to address an ongoing emergency.
See Michigan v. Bryant, 562 U.S. 344, 361, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). In
that case, Michigan police dispatched to a gas station parking lot found Anthony
Covington mortally wounded. Covington told police that he had been shot by Richard
Bryant outside Bryant's house and had then driven himself to the parking lot. The United
States Supreme Court, without addressing Covington's statements as a dying declaration,
ultimately held that Covington's identification and description of Bryant and the location
of the shooting were not testimonial statements because they had a primary purpose to
enable police to meet an ongoing emergency. 562 U.S. at 377-78.

Richard's Confrontation Clause challenge is not properly preserved as to the
testimony of the two police officers, Nemec and Floyd. But even if it were, Swygert's
statements to the police officers, including her identification of Richard as the shooter,
were made for the primary purpose of enabling the police to meet an ongoing emergency.
Under Bryant, the statements were nontestimonial, and the admission of the evidence did
not violate Richard's rights under the Confrontation Clause.

Hittle and Conner are not police officers, so Swygert's statements to them do not
fall under the holding in Bryant. But even if Swygert's dying declarations to Hittle and

18
Conner are considered testimonial, it is likely that the admission of this evidence did not
violate the Confrontation Clause. See Reed, 302 Kan. at 403; Jones, 287 Kan. at 569.
And finally, we observe that because Swygert's statements to the police are admissible
under the holding in Bryant, any error in admitting the same statements made to Hittle
and Conner would be harmless beyond a reasonable doubt. See State v. Nguyen, 281 Kan.
702, Syl. ¶ 6, 133 P.3d 1259 (2006) ("Violation of the Confrontation Clause is subject to
analysis under the federal harmless error rule."). Thus, Richard has no right to any relief
from his convictions based on a violation of his confrontation rights.

DID THE DISTRICT COURT ERR IN ADMITTING RICHARD'S FACEBOOK MESSAGES?

Richard next claims the State failed to properly authenticate or lay a foundation
for State's Exhibit 32—a collection of information obtained from Richard's public
Facebook page and private messages between him and a third party. The exhibit was
admitted through the testimony of Detective Burgdorf who obtained a warrant for the
Facebook records. Richard's claim focuses on a conversation police obtained from his
Facebook Messenger account, which he contends the State failed to prove were his and
were inadmissible hearsay. The State takes the opposite position and asserts that the
evidence was admissible under the party admissions exception to the hearsay rule.

Richard objected to the admission of State's Exhibit 32 at trial. During the ensuing
bench conference, defense counsel argued that the State had not—and likely could not—
provide a sufficient foundation for the evidence, and the evidence was hearsay and
irrelevant. The parties engaged in a long discussion before the district court allowed the
State to proceed. When the State moved to admit the exhibit in front of the jury, defense
counsel objected again, stating, "Same objection." Over the objection, the district court
admitted the evidence. Based on Richard's timely objection to the evidence, this issue is
preserved for appellate review. See K.S.A. 60-404.

19
 When an appellate court reviews a decision to admit evidence, it first considers
whether the evidence is relevant and then applies the statutory rules that govern the
admission or exclusion of evidence. State v. Jenkins, 311 Kan. 39, 44, 455 P.3d 779
(2020). "All relevant evidence is admissible unless prohibited by statute, constitutional
provision, or judicial decision." State v. Meggerson, 312 Kan. 238, 252, 474 P.3d 761
(2020); see K.S.A. 60-407(f). To the extent this issue requires interpretation of a statute
or a determination of which statutory rule applies, it is subject to de novo review. See
State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019); Miller, 308 Kan. at 1166.

Under K.S.A. 60-464, authentication of a writing is required before it may be
received in evidence. This court generally reviews evidentiary issues related to
authentication and foundation for an abuse of discretion. See State v. Banks, 306 Kan.
854, 865, 397 P.3d 195 (2017); State v. Davis, 41 Kan. App. 2d 1037, 1047, 207 P.3d 281
(2009). Moreover, the erroneous admission of evidence is subject to review for harmless
error under K.S.A. 2018 Supp. 60-261. But if the error implicates a constitutional right,
the effect of that error must be assessed under the constitutional harmless error standard:
whether the party benefiting from the error proves beyond a reasonable doubt that the
error would not or did not affect the outcome of the trial in light of the entire record. State
v. Santos-Vega, 299 Kan. 11, 24, 321 P.3d 1 (2014).

Richard's challenge to the Facebook messages is similar to an issue raised in State
v. Dickerson, No. 116,628, 2018 WL 5851444 (Kan. App. 2018) (unpublished opinion).
In that case, as here, the defendant objected to the State's use of Facebook messages
based in part on authenticity. The Dickerson court interpreted the defendant's appellate
claim as challenging the sufficiency of the State's proof showing the messages were his
or that they were accurate. The Dickerson court found that "a party seeking the admission
of such writings has a small burden of proving authenticity," and after reviewing similar
cases determined that the messages could be admitted based on "reasonable minimal
circumstances." 2018 WL 5851444, at *6-7 (citing K.S.A. 60-464).

20
 The pertinent information in the Facebook records challenged here included a
conversation between Richard and Shalon Marie Henderson. In the conversation with
Henderson, timestamped the day after Swygert's death, Richard mentioned that a lady
chased him, tried to stab him, and pushed him into moving cars. Richard also sent
Henderson a link to a news story reporting Swygert's death with a statement imploring
Henderson to believe that he would not hurt someone unless his life was in danger.

At trial, defense counsel argued that because the State was trying to admit this
information under the business records exception for hearsay in K.S.A. 2018 Supp. 60-
460(m), the State needed to offer an affidavit from the Facebook records custodian to lay
a proper foundation for the evidence. The State explained that Burgdorf had received a
custodian's affidavit but no longer had the affidavit in her possession. Still, the State
alleged that Burgdorf's testimony that she had received the affidavit was enough to
authenticate the information provided in the messages. The State also pointed out that
some of the evidence taken from Facebook was publicly accessible. The district court
found that the absence of the records custodian's affidavit went to the weight of the
evidence and not its admissibility. Thus, the district court overruled Richard's objection
to the exhibit.

The State then presented circumstantial evidence before the jury to establish that
the exhibit was what the State purported it to be—Richard's Facebook conversation.
Burgdorf testified that she obtained a warrant to search three Facebook profiles, including
those belonging to Richard and Swygert. She explained that she viewed Richard and
Swygert's profiles before executing the warrant to ensure she received information from
the correct Facebook accounts. She then received hyperlinks that provided her access to
the full Facebook profiles and downloaded the information. Burgdorf then compared the
downloaded information to the information she could view publicly to check that the
information was accurate. She believed she received the correct information based on the
conversations and photographs in the information Facebook provided.

21
 State's Exhibit 32 also included a photograph of Richard and his name. Burgdorf
compared the photograph and information to ensure it was correct. Together this
evidence supported a reasonable inference that Richard "wrote the messages, which was
adequate proof of their authenticity and supported their admission into evidence. Any
doubt that [Richard] wrote the messages and any conflicting evidence goes to the weight
of the evidence, not the exhibits' admissibility." Dickerson, 2018 WL 5851444, at *8.

Although Burgdorf's testimony was enough to provide the authentication for
State's Exhibit 32 required by K.S.A. 60-464, we agree with Richard's argument on
appeal that without producing the records custodian's affidavit at trial, the State failed to
satisfy the business records exception to the hearsay rule under K.S.A. 2018 Supp. 60-
460(m). Richard cites this court's analysis in State v. Holloway, No. 120,290, 2020 WL
4250262 (Kan. App. 2020) (unpublished opinion), to support his claim. In that case, this
court considered whether the district court erred in admitting a "FD-302 Form Report"
from the Federal Bureau of Investigation (FBI). The State did not produce an affidavit
from a records custodian nor did anyone from the FBI testify to the foundation of the
report.

The Holloway court found the State failed to lay an adequate foundation for the
report as a business record. It noted that the State's witness who obtained the report
"failed to establish that he had knowledge of the methods and circumstances involved in
the preparation of the FBI report. As a result, the detective's testimony did not show that
the methods and circumstances utilized by the FBI in preparation of State's Exhibit 16
indicated it was trustworthy." 2020 WL 4250262, at *6. The court thus found that the
admission of the evidence was improper. 2020 WL 4250262, at *7.

The State now argues on appeal that State's Exhibit 32 was admissible under the
party admission exception to the hearsay rule. See K.S.A. 2018 Supp. 60-460(g)
(defining exception to hearsay rule for party admissions when made in the person's

22
individual capacity). We agree with the State that K.S.A. 2018 Supp. 60-460(g) would
apply here to allow the admission of State's Exhibit 32. Applying this hearsay exception
along with Burgdorf's detailed testimony about the steps she took to ensure the accuracy
of the information from Facebook, the State laid a sufficient foundation to show that
Exhibit 32 was what the State purported it to be—Richard's Facebook conversation.

The State did not rely on the party admission exception to the hearsay rule at trial.
For this reason, we could decline to consider the State's argument for the first time on
appeal. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008) (because State's
argument that testimony was admissible under the excited utterance exception was being
raised for the first time on appeal, the court declined to address the issue). But we observe
that Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35), that prevents new issues
from being raised for the first time on appeal, only applies to the content of the
appellant's brief. Supreme Court Rule 6.03 (2021 Kan. S. Ct. R. 36), addressing the
content of the appellee's brief, contains no similar prohibition. And even if the rules of
appellate procedure generally prohibited the appellee from raising new issues or making
new arguments on appeal, a recognized exception to this prohibition allows a party to
assert a new legal theory for the first time on appeal if it establishes the district court's
ruling was right for the wrong reason. State v. Johnson, 309 Kan. 992, 995, 441 P.3d
1036 (2019).

Without reaching a final decision on whether the district court erred in admitting
State's Exhibit 32, we find that any error in the admission of the exhibit was harmless.
Richard did not admit to shooting Swygert in his Facebook messages. The Facebook
messages were not a central part of the State's case against Richard, and in fact, the
prosecutor never mentioned the Facebook messages in his closing argument. The
probative value of the exhibit was to place Richard at the scene of the shooting. But there
was a great deal of other evidence placing Richard at the scene of the shooting including
Real's testimony that Richard and Swygert were arguing at the Burger King a brief time

23
before the shooting, the Burger King surveillance video showing the altercation between
Richard and Swygert, and Richard's own statement to the police that he was following
Swygert down the sidewalk when he heard a gun go off nearby. Swygert staggered into
the Taco Bell about a minute or two after leaving the Burger King where she had argued
with Richard. And, of course, Swygert's statements to the police and the customers at the
Taco Bell identified Richard as the shooter. Thus, we find that any error in the admission
of the Facebook messages did not affect the outcome of the trial and is not a ground for
reversing Richard's convictions and granting him a new trial. See K.S.A. 2018 Supp. 60-
261.

DID THE DISTRICT COURT ERR IN ADMITTING THE BURGER KING
SURVEILLANCE VIDEOS?

Richard next claims the district court erred in admitting State's Exhibit 31, the
Burger King surveillance videos. These videos showed Richard and Swygert at the
Burger King next to the Taco Bell right before the shooting, there was an altercation
between the two, and Richard physically removed Swygert's hat from her head. The State
introduced the exhibit through the testimony of Norma Garcia, the Burger King district
manager over the Kansas City area. Real, the Burger King employee present when the
incident occurred, also provided relevant testimony about the videos. Richard argues the
State failed to lay a sufficient foundation to introduce the exhibit. Conversely, the State
argues that it laid a proper foundation for the surveillance videos through its witnesses.

Richard objected to the introduction of the surveillance videos at trial based on
insufficient foundation, so the issue is preserved for appellate review. We have already
outlined our standard of review over questions about the admissibility of evidence in the
previous issue. Along with those standards, the following legal principles—as recently
outlined in State v. Montgomery, No. 120,992, 2020 WL 6533260, at *1 (Kan. App.
2020) (unpublished opinion)—also apply to this analysis:

24
 "Videos, like photos, are 'writings' under Kansas evidence rules. See K.S.A. 2019
Supp. 60-401(m); State v. Dale, 293 Kan. 660, 662-63, 267 P.3d 743 (2011). The burden
of establishing a foundation to admit a writing is 'minimal'—it requires only that the
proponent offer evidence that a reasonable juror could rely on to conclude that the writing
is what the proponent represents it to be. Jenkins, 311 Kan. at 51. The evidence may be
circumstantial or indirect. 311 Kan. at 51. 'Photographs are generally admissible after
proper foundation and identification if they accurately represent an object that is material
and relevant to an issue in the case.' State v. Kemp, 30 Kan. App. 2d 657, 662, 46 P.3d 31
(2002). The degree of accuracy required varies depending on the purpose of the
photograph. State v. Suing, 210 Kan. 363, 365, 502 P.2d 718 (1972). The person who lays
the foundation for a photograph need not be the person who took the photograph. State v.
Pruitt, 42 Kan. App. 2d 166, 176, 211 P.3d 166 (2009). No statute or case requires the
witness to be the person who downloaded the video from the cameras or burned it onto
the DVD. State v. Miles, No. 110,511, 2014 WL 7565767, at *7 (Kan. App. 2014)
(unpublished opinion). And those testifying do not have to state specifically that the
pictures are 'fair representations' of what was portrayed. Suing, 210 Kan. at 365."

Our Supreme Court also recently provided the following guidance for considering
foundation for recordings in Jenkins, 311 Kan. at 48:

"'Perhaps the best way to establish a minimal sufficient foundation is through
testimony as to the recording's accuracy by a nonparticipant who overheard the
conversation as it occurred, either through physical presence or electronic monitoring.
Other methods that courts have found to satisfy minimal sufficient foundation
requirements include a participant's testimony that the recording is accurate, an
independent determination by the trial judge that the recording is accurate, evidence as to
chain of custody, or testimony of a participant in the conversation together with proof by
an expert witness.' 23 Am. Jur. 3d Proof of Facts 315 § 35, pp. 401-02."

The record reflects that the State provided sufficient authentication and foundation
for the Burger King videos through the testimony of two witnesses. Garcia testified that
she downloaded the surveillance videos and provided them to the police. She explained

25
that she does not maintain the videos personally, but Burger King maintained the DVR
surveillance system and the cameras ran continually while the restaurant was open. She
also stated that the videos were kept in the ordinary course of business. And she was the
only person with access to the videos, but she cannot—and did not—alter or delete any
footage. Garcia also testified that the videos depicted the Burger King on December 22,
2018. The videos are also timestamped. Garcia's testimony thus sufficiently "negates any
serious inference that the tape had been subjected to tampering." Montgomery, 2020 WL
6533260, at *2 (citing State v. Pham, 281 Kan. 1227, 1243-45, 136 P.3d 919 [2006]).

Richard contends, however, that Garcia did not work the night of the shooting and,
thus, did not have the requisite personal knowledge to say what was on the surveillance
tape. But as this court has noted the "virtue of surveillance cameras" is that they run
unattended. State v. Moon, No. 119,423, 2019 WL 2479458, at *4 (Kan. App. 2019)
(unpublished opinion). And our appellate courts have long recognized that the person
who lays the foundation for a photograph need not be the same person who took it. State
v. Pruitt, 42 Kan. App. 2d 166, 176, 211 P.3d 166 (2009). Garcia provided the necessary
foundation to establish that the videos were authentic. And Richard ignores that the State
called another witness who provided relevant testimony about the videos—Real.

Real was working on the day of the shooting. She provided testimony establishing
what the videos purportedly showed based on her personal account of the events. Real's
testimony described Richard and Swygert's actions both inside and outside the building,
including when they were fighting outside. She also specifically recognized and
identified Richard as the man in the video. Real testified after Garcia and, significantly,
the videos were not published to the jury until Real's testimony. Thus, the testimony of
the two witnesses together provided enough evidence to meet the "'minimal'" burden to
admit relevant and material videos. Jenkins, 311 Kan. at 51. The district court did not err
in admitting the Burger King surveillance videos.

26
 DID THE DISTRICT COURT COMMIT CLEAR ERROR BY NOT INSTRUCTING THE JURY ON
IMPERFECT SELF-DEFENSE VOLUNTARY MANSLAUGHTER?

Richard next claims that although he did not request the instruction at trial, the
district court committed clear error by failing to instruct the jury on imperfect defense, a
form of voluntary manslaughter. The State argues that Richard not only failed to request
the instruction but invited the error and is thus precluded from challenging the jury's
verdict on this basis. The State also argues that the instruction on voluntary manslaughter
was not factually appropriate, and even if it were, the State contends the district court did
not commit clear error by failing to give the instruction.

Voluntary manslaughter includes knowingly killing a human being committed
upon an unreasonable but honest belief that circumstances existed that justified use of
deadly force. K.S.A. 2018 Supp. 21-5404(a)(2). This form of voluntary manslaughter is
commonly known as imperfect self-defense voluntary manslaughter. Richard now claims
on appeal that the district court should have instructed the jury on this crime as a lesser
offense of intentional second-degree murder.

"When analyzing jury instruction issues, we follow a three-step process:
'(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal;
(2) considering the merits of the claim to determine whether error occurred below; and
(3) assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless.' [Citation omitted.]" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

When, as here, a party fails to preserve an issue by requesting the instruction in the
district court, an appellate court will still review whether the instruction would have been
legally and factually appropriate but will reverse only if the party seeking reversal
establishes "'clear error.'" State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 (2015); see
State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 (2012) (explaining that the burden to

27
show clear error is on the party seeking reversal). An instruction is clearly erroneous
when "'the reviewing court is firmly convinced that the jury would have reached a
different verdict had the instruction error not occurred.'" Barber, 302 Kan. at 377.

Although this court may consider an unpreserved instruction claim for clear error,
a defendant may not invite and lead a district court into error and then complain of the
error on appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). Relevant here,
a defendant cannot complain about the lack of an instruction when the defendant invited
and led the trial court to error by requesting that court not give a lesser included offense
instruction. State v. Jones, 295 Kan. 804, 812-13, 286 P.3d 562 (2012).

The State argues that Richard not only failed to request an instruction on voluntary
manslaughter, but he invited any error and is thus precluded from challenging the jury's
verdict on this basis. During the instruction conference, the district court noted that
defense counsel did not offer any instructions for a lesser included offense for second-
degree murder and asked whether counsel agreed that the facts did not allow an
instruction on involuntary manslaughter. Defense counsel agreed that an instruction on
involuntary manslaughter should not be given and added: "I simply cannot fathom what
sort of lesser included [instruction] I could request for murder in the second degree."
Defense counsel also stated that "my client is not making a claim of self-defense."

Defense counsel stated that he could not think of any lesser offense to second-
degree murder that applied here, and he rejected any claim of self-defense. Still, defense
counsel never expressly rejected an instruction on imperfect self-defense voluntary
manslaughter. Although the issue is close, we decline the State's request to apply the
invited error doctrine in this situation.

Voluntary manslaughter under K.S.A. 2018 Supp. 21-5404 is a lesser included
offense of intentional second-degree murder under K.S.A. 2018 Supp. 21-5403(a)(1).

28
See, e.g., State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008). Thus, an instruction
on imperfect self-defense voluntary manslaughter would have been legally appropriate.

We next consider whether the instruction would have been factually appropriate.
When evaluating whether a lesser included instruction is factually appropriate, courts use
the following test: "Is there some evidence when viewed in the light most favorable to
the defendant that would allow a rational factfinder to find the defendant guilty of the
lesser included offense?" McLinn, 307 Kan. at 324-25.

Richard did not testify at trial. The only evidence that would have supported an
instruction on imperfect self-defense voluntary manslaughter was Richard's Facebook
messages. In these messages dated the day after Swygert's death, Richard explained that
he would never hurt anyone unless his life was in danger and he mentioned that a lady
had chased him, tried to stab him, and pushed him into moving cars. Although this
evidence was somewhat vague, it provides some support for a potential claim by Richard
that he killed Swygert based upon an unreasonable but honest belief that circumstances
existed that justified use of deadly force. See K.S.A. 2018 Supp. 21-5404(a)(2). Although
it is a close call, this evidence provides some factual basis for a lesser offense instruction
on imperfect self-defense voluntary manslaughter.

But even if an instruction on imperfect self-defense voluntary manslaughter was
both legally and factually appropriate, Richard fails to firmly convince this court that the
jury would have reached a different verdict had the instruction been given. See Barber,
302 Kan. at 377. Richard did not testify at trial or offer any evidence to try to justify the
shooting. Any suggestion that Swygert was ever chasing Richard, trying to stab him, or
trying to push him into moving cars after she left the Burger King for the final time
conflicts with Richard's own statement to the police. And as part of his defense, Richard
argued to the jury that he was significantly taller than Swygert—he was 6 feet 3 inches
tall while Swygert was 5 foot, 8 inches. Swygert's autopsy report showed she only

29
weighed 104 pounds. Based on the weak evidence that would have supported a jury
instruction on imperfect self-defense voluntary manslaughter, we conclude the district
court did not commit clear error by not instructing the jury on this lesser offense.

WAS RICHARD DENIED A FAIR TRIAL BASED ON CUMULATIVE ERROR?

As a final challenge to his convictions, Richard asserts that cumulative error
denied him a fair trial. When evaluating a claim of cumulative error, this court considers
the totality of the circumstances to determine whether the errors substantially prejudiced
the defendant and denied the defendant a fair trial. In making this determination, "an
appellate court examines the errors in context, considers how the district court judge
addressed the errors, reviews the nature and number of errors and whether they are
connected, and weighs the strength of the evidence." State v. Thomas, 311 Kan. 905, 914,
468 P.3d 323 (2020) (citing State v. Holt, 300 Kan. 985, 1007-08, 336 P.3d 312 [2014]).

We have not conclusively identified any error committed at Richard's trial. The
only potential errors we have discussed were the admission of the Facebook messages
under the business records exception to the hearsay rule and the district court's failure to
sua sponte instruct the jury on imperfect self-defense voluntary manslaughter as a lesser
offense to intentional second-degree murder. Interestingly, had the district court excluded
the Facebook messages, there would have been no factual basis for the voluntary
manslaughter instruction. In any event, for the same reasons we did not find either of
these potential errors to require reversal of Richard's convictions, we also find that the
cumulative effect of the possible errors did not deny Richard a fair trial. A criminal
defendant has a right to receive a fair trial but not a perfect one. State v. Walker, 308 Kan.
409, 426, 421 P.3d 700 (2018). Richard received a fair trial, and we have no reason to
overturn his convictions based on the arguments he makes on appeal.

30
DID THE DISTRICT COURT ERR IN ONLY PARTIALLY GRANTING RICHARD'S MOTION FOR
A DEPARTURE SENTENCE?

Before sentencing, Richard moved for a durational departure from the sentencing
guidelines for his second-degree murder conviction, requesting a sentence applicable to
an offender with a criminal history score of C instead of B. He later specifically requested
a sentence of 272 months' imprisonment. The district court granted Richard's motion but
only partially, splitting the difference between the presumptive term for the homicide of
586 months and Richard's request for 272 months and sentenced Richard to 429 months'
imprisonment. Richard appeals the sentence, arguing that the district court erred in only
partially granting his request for a departure sentence. The State argues that assuming the
district court had any legal ground to grant a departure, it did not abuse its discretion by
imposing a sentence of 429 months' imprisonment.

Under K.S.A. 2018 Supp. 21-6820(a), a departure sentence is subject to appeal by
the defendant or the State. See State v. Looney, 299 Kan. 903, 907-08, 327 P.2d 425
(2014) (holding a partial departure sentence is subject to appeal). Both parties agree that
when the question is whether the district court erred in the extent of a durational
departure, appellate courts review for abuse of discretion. State v. Saucedo, 310 Kan.
361, 366, 446 P.3d 491 (2019). A judicial action constitutes an abuse of discretion if (1) it
is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based
on an error of fact. Ingham, 308 Kan. at 1469. The party asserting the district court
abused its discretion bears the burden of showing such abuse of discretion. State v.
Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).

The district court found that the age of Richard's criminal history, the lack of
similar offenses in his criminal history, and the disproportionate difference in the term of
the presumptive sentence for an offender with a criminal history score of C versus B
provided substantial and compelling reasons to depart from the presumptive sentence for

31
the homicide. On appeal, Richard argues that the district court erroneously failed to
consider other factors such as his claim that evidence showed that Swygert was the
aggressor in the criminal conduct associated with the crime of conviction. See K.S.A.
2018 Supp. 21-6815(c)(1)(A). But this court is limited to considering only the articulated
reasons for departure stated on the record at sentencing. State v. Scuderi, No. 107,114,
2013 WL 3791614, at *8 (Kan. App. 2013) (unpublished opinion) (citing State v.
Spencer, 291 Kan. 796, 811, 248 P.3d 256 [2011]).

Based on our review of the record and given the reasons articulated by the district
court for granting a departure, a reasonable person could agree with the district court's
decision to split the difference between the sentencing terms the parties were requesting
and to sentence Richard to 429 months' imprisonment for his conviction of intentional
second-degree murder. Richard fails to meet his burden of showing that the district court
erred in only partially granting his request for a departure sentence.

DID THE DISTRICT COURT ERR IN GRANTING ANY DEPARTURE SENTENCE?

In a cross-appeal, the State contends the district court erred by granting any
departure sentence because there were no substantial and compelling reasons to grant a
departure. Conversely, Richard argues there were substantial and compelling reasons to
support the durational departure granted by the district court.

A sentencing judge must impose the presumptive sentence in the applicable
sentencing guidelines grid "unless the judge finds substantial and compelling reasons to
impose a departure sentence. If the sentencing judge departs from the presumptive
sentence, the judge shall state on the record at the time of sentencing the substantial and
compelling reasons for the departure." K.S.A. 2018 Supp. 21-6815(a).

32
 In any appeal of a judgment of conviction imposing a sentence that departs from
the presumptive sentence prescribed by the sentencing grid for a crime, the review of the
sentence will be limited to whether the sentencing court's findings of fact and reasons
justifying a departure are (1) supported by the evidence in the record and (2) constitute
substantial and compelling reasons for departure. K.S.A. 2018 Supp. 21-6820(d). When
the question is whether the record factually supports the articulated reasons for a
departure, an appellate court reviews for substantial competent evidence. State v. Brown,
305 Kan. 674, 693, 387 P.3d 835 (2017). When the question is whether factually
supported reasons constitute substantial and compelling reasons for departure, an
appellate court has unlimited review. 305 Kan. at 693-94.

K.S.A. 2018 Supp. 21-6815(c)(1) provides a nonexclusive list of mitigating factors
that may be considered by a district court in deciding whether there are substantial and
compelling reasons to depart. Our Supreme Court recently clarified the standard for
reviewing a departure sentence based on a factor not included in the statute:

"When an appellate court is considering whether a sentencing court erred in granting or
denying departure based on a nonstatutory factor, the reviewing court applies an abuse of
discretion standard. This means appellate review of the departure decision should follow
a three-step framework: (1) determine whether the sentencing court's nonstatutory factor
can be a mitigating factor as a matter of law under K.S.A. 2019 Supp. 21-6815(c); (2) if it
can, then decide whether that nonstatutory factor's existence is supported by the record;
and (3) if so, then determine whether the sentencing court acted reasonably when it
concluded there was a substantial and compelling reason to depart in a particular case
based on that nonstatutory factor by itself or collectively with other statutory or
nonstatutory factors cited by the sentencing court.
"Viewed in this way, it remains clear the applicable standard of review is abuse
of discretion by matching what is at issue with the traditional abuse of discretion
analytical progression. For example, a sentencing court could abuse its discretion at the
first step if its ruling was based on an error of law; at the second step, its discretion could
be abused if its finding was based on an error of fact; and at the third step its discretion

33
 could be abused if its ruling was unreasonable. See [State v.] Jolly, 301 Kan. [313, 325,
342 P.3d 935 (2015)]. Put differently, the respective inquiries on each analytical step are:
(1) whether the determination of a nonstatutory factor was guided by an erroneous legal
conclusion; (2) whether substantial competent evidence supported the factual finding that
the factor existed, i.e., an error of fact; and (3) whether a reasonable person would have
taken the view adopted by the sentencing court. And it is important to emphasize that
only the first step involves a legal question, subject to unlimited review." State v. Morley,
312 Kan. 702, 711, 479 P.3d 928 (2021).

As stated above, the district court found that the age of Richard's criminal history,
the lack of similar offenses in his criminal history, and the disproportionate difference in
the term of the presumptive sentence for an offender with a criminal history of C versus
B provided substantial and compelling reasons to depart from the presumptive sentence
for the homicide. All three reasons are nonstatutory factors for supporting a departure.
See K.S.A. 2018 Supp. 21-6815(c)(1). We will address these reasons in reverse order.

First, the district court correctly observed there is a substantial difference in the
term of the presumptive sentence for an offender with a criminal history of C versus B. In
Richard's case his presumptive sentence for the second-degree murder conviction with a
criminal history score of B was 586 months' imprisonment. The presumptive sentence for
the same crime of conviction under criminal history category C would have been 272
months' imprisonment. But we reject the district court's conclusion that this fact
constitutes a substantial and compelling reason to grant a departure. Essentially, the
district court substituted its judgment for that of the Legislature and rejected the
sentencing grid provided by law at K.S.A. 2018 Supp. 21-6804.

Second, the district court found that the lack of similar offenses in Richard's
criminal history was a substantial and compelling reason to depart. While this factor
might support a departure in some cases, we disagree that it supported a substantial and
compelling reason for a departure in Richard's case. Richard's PSI report revealed 19

34
prior adult convictions including convictions of robbery and conspiracy to commit
robbery. We find the fact that Richard had no prior convictions of second-degree murder
hardly amounts to a substantial and compelling reason to grant a departure sentence.

The district court's third reason for granting a departure was the age of Richard's
criminal history. As the State points out, "'a defendant's criminal history cannot be used
as justification for a departure sentence when the sentencing guidelines have already
taken the defendant's criminal history into account in determining the presumptive
sentence within the grid.'" State v. Theurer, 50 Kan. App. 2d 1203, 1227, 337 P.3d 725
(2014). But Kansas courts have long recognized that the age of a prior conviction may be
a compelling reason to depart. State v. Heath, 21 Kan. App. 2d 410, 415, 901 P.2d 29
(1995). Richard's two prior person felony convictions for robbery and conspiracy to
commit robbery were committed in 2003. These were the two convictions that gave
Richard a criminal history score of B. That these two convictions occurred 15 years
before Richard's current crime of conviction can be properly considered by the district
court as a substantial and compelling reason to grant a departure sentence.

Thus, the district court's departure sentence in Richard's case was based on at least
one reason that was supported by the evidence in the record and constituted a substantial
and compelling reason for departure. See K.S.A. 2018 Supp. 21-6820(d). In Kansas, there
is no legal requirement that all the reasons given by the district court to support a
departure sentence be substantial and compelling provided at least one factor the district
court relied on is substantial and compelling. State v. Sampsel, 268 Kan. 264, 282, 997
P.2d 664 (2000). Based on the record here, we conclude the district court did not err in
granting Richard's motion for a departure sentence.

Affirmed.

35