State v. Smith

NOT DESIGNATED FOR PUBLICATION

No. 121,332

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL COLLINS SMITH,
Appellant.

MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed October 1,
2021. Affirmed in part, reversed in part, vacated in part, and remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREEN, P.J., ISHERWOOD, J., and MCANANY, S.J.

PER CURIAM: A jury convicted Michael Collins Smith of voluntary manslaughter,
attempted voluntary manslaughter, aggravated child endangerment, and criminal
possession of a firearm. Smith appeals, arguing that we should reverse his convictions
because the trial court made multiple errors when instructing the jury. Smith further
argues that we should reverse his criminal possession of a firearm conviction because it
violates section 4 of the Kansas Constitution Bill of Rights. Finally, Smith contends that
we should vacate his sentences and remand the case to the trial court with directions to
resentence him without using his criminal history to enhance his sentences. According to

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Smith, by relying on his criminal history to enhance his sentences, the trial court violated
his common-law right to jury trial as preserved under section 5 of the Kansas
Constitution Bill of Rights.

Of Smith's arguments, we find error only in the trial court's failure to instruct the
jury on imperfect self-defense involuntary manslaughter as a lesser included offense of
Smith's intentional first-degree murder charge for the killing of A.S. As a result, we
reverse Smith's conviction for the on sudden quarrel voluntary manslaughter of A.S.
under K.S.A. 2016 Supp. 21-5404(a)(1), vacate his corresponding sentence, and remand
the case to the trial court for a new trial on whether Smith committed (1) an on sudden
quarrel voluntary manslaughter of A.S. under K.S.A. 2020 Supp. 21-5404(a)(1) or (2) an
imperfect self-defense involuntary manslaughter under K.S.A. 2020 Supp. 21-5405(a)(4).
Thus, we affirm in part, reverse in part, vacate in part, and remand with directions.

FACTS

This case concerns an incident that occurred on February 2, 2017, a little after 4 in
the afternoon that led to Smith's deadly shooting of A.S. Significantly, many of the facts
surrounding the shooting are undisputed.

For instance, it is undisputed that the shooting occurred between the living room
and kitchen inside the two-bedroom apartment that A.S. shared with his girlfriend—K.R.,
their three-month-old infant—K.S., K.R.'s mother—B.G., as well as K.R.'s two younger
sisters. It is undisputed that aside from Smith, only A.S., K.S., and B.G. were at or near
the apartment when the shooting happened. It is undisputed that a few minutes before the
shooting, Smith was aware that A.S. was carrying K.S. with him around the apartment. It
is uncontested that when Smith left the apartment, he fired more shots when he saw B.G.,
who had been talking on her cell phone near the apartment's staircase. It is undisputed
that when law enforcement officers arrived at the apartment, they found A.S., who had

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already succumbed to his six bullet wounds, lying on his back with no weapons on or
near his body. And it is undisputed that when the police arrived, they also discovered
K.S., who was too young to raise her own head or roll over by herself, lying next to her
father's dead body. Likewise, it is uncontested that on arriving at the apartment, the police
discovered evidence indicating that A.S. was involved in the illegal drug trade. For
example, the police discovered a substantial amount of marijuana and over $30,000 in
cash in the apartment. Lastly, it is undisputed that as of February 2, 2017, Smith owed
A.S. $2,000, a sum he was supposed to have repaid to A.S. by October 2016.

Based on the events at the apartment on February 2, 2017, the State charged Smith
with the intentional first-degree murder of A.S., the attempted intentional first-degree
murder of B.G., and the aggravated endangerment of K.S. Because Smith's criminal
history prohibited him from possessing a gun, the State also charged Smith with criminal
possession of a firearm. Also, because some text messages retrieved from A.S.'s cell
phone indicated that Smith wanted to buy marijuana from A.S., the State charged Smith
with using a communication facility to engage in a drug crime.

Smith's jury trial

Smith's jury trial on the preceding charges occurred between February 11, 2019,
and February 15, 2019. At trial, the State's case against Smith hinged on its assertion that
Smith committed intentional first-degree murder by shooting A.S. six times as he held
K.S. in his arms. Although not entirely clear, it seems the State believed that Smith
committed a premeditated shooting as he and A.S. attempted to complete a drug deal
inside the apartment. It supported this theory by pointing to the text messages retrieved
from A.S.'s cell phone indicating that Smith wanted to buy marijuana from A.S. The
State's case further hinged on its contention that after intentionally murdering A.S., Smith
tried to intentionally kill B.G. when he was leaving the apartment.

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 On the other hand, Smith's case hinged on his contention that he went to the
apartment on February 2, 2017, to discuss his $2,000 debt, but those discussions quickly
became heated when A.S. realized that Smith could not repay the debt. Although Smith
admitted that he technically possessed a firearm, he denied intending to kill A.S.,
intending to kill B.G., recklessly causing the endangerment of K.S., being a criminal in
possession of a firearm, or wanting to buy marijuana from A.S. He instead insisted that
he had to shoot A.S. in self-defense because A.S. was actively trying to kill him with a
handgun that he ultimately gained control of and then used to kill A.S. He argued that
because A.S. was trying to kill him, he never noticed if A.S. was holding K.S. in his arms
as he fired the gun. For this reason, as well as his self-defense claim against A.S., Smith
argued that the jury should acquit him of endangering K.S. Additionally, he argued that
because he believed that B.G. was trying to shoot him with a black handgun that he had
earlier seen on the apartment's kitchen counter, he acted in self-defense when he fired
"warning shots" towards B.G. as he left the apartment. Of note, Smith's contention that
there was a black handgun on the apartment's kitchen counter when he initially entered
the apartment on February 2, 2017, was a central part of his defense.

The State's evidence

To support its case, the State primarily relied on the testimony of B.G. During her
testimony, B.G. denied that there was a black handgun located on the kitchen counter
when Smith initially entered the apartment on February 2, 2017. She alleged that to her
knowledge, there were no "gun[s] anywhere hanging out in the apartment." So she also
denied trying to shoot Smith as he left the apartment.

As for the events leading up to the shooting, B.G. explained that Smith knocked
on the apartment door a little before 4 p.m. on February 2, 2017. B.G. explained that
although she did not know that Smith was coming over to the apartment that afternoon,
she was familiar with him because Smith, who was a barber, had previously trimmed

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A.S.'s hair at the apartment. She also testified that once Smith entered the apartment,
Smith and A.S. went into the master bedroom.

According to B.G., after Smith and A.S. went into the master bedroom, she went
into the apartment's other bedroom so she could talk on her cell phone. But B.G.
explained that she remained in this bedroom for only a few minutes because she decided
to continue her cell phone conversation outside the apartment. Also, she explained that as
she departed the apartment, Smith was once again entering the apartment. She testified
that as Smith reentered the apartment, he was carrying a black bag.

Next, B.G. testified that she continued to talk on her cell phone after leaving the
apartment. She testified that not long after Smith reentered the apartment, though, she
heard five or six rapid gunshots come from inside the apartment. B.G. explained that
when she heard the gunshots, she looked towards the apartment door. At that point, she
saw Smith hurriedly leaving the apartment. She further testified that once Smith noticed
her, Smith aimed a gun at her and started shooting.

B.G. testified that when Smith started shooting at her, she dropped her cell phone,
started running, and then hid behind a car in the apartment parking lot. She testified that
Smith shot at her five to six times in total, with one bullet making a hole in her sweatshirt
as it grazed her right arm. The State introduced photos that showed a hole in the right arm
of B.G.'s sweatshirt. B.G. then explained that after Smith drove off, she went to a
neighbor's apartment and called 911 for help.

In addition to B.G.'s testimony, the State called law enforcement officers, forensic
scientists, and crime scene analysts who investigated the apartment shooting to support
its case. The law enforcement officers who initially responded to B.G.'s 911 call all
testified that they could hear K.S. crying very loudly inside the apartment before they
entered it. They all explained that when they entered the apartment shortly after

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4:15 p.m., K.S. was lying face-down on her stomach within arm's reach of her father's
body. Meanwhile, the State's forensic biologist testified that A.S.'s blood created the
blood stain found on K.S.'s clothing.

On the search of the apartment immediately following the shooting, one officer
explained that he found a holstered black Smith and Wesson handgun in the master
bedroom. The primary crime scene investigator assigned to the case, Amy Santoro,
testified about finding ballistics related evidence, which included the following: (1) four
spent bullets immediately above the concrete subfloor under A.S.'s body between the
apartment's living room and kitchen area, (2) one spent bullet under K.S.'s baby bouncer
in the apartment's living room, (3) one spent bullet in A.S.'s left shoulder, and (4) one
spent bullet in the apartment's parking lot. According to Santoro, this final spent bullet
was located under one of the two cars in the apartment's parking lot with evidence of
gunshot damage. Santoro as well as multiple officers also testified about the discovery of
five shell casings inside the apartment and three shell casings in the apartment's parking
lot.

About the specific features of the spent bullets and casings recovered, Santoro
explained that the characteristics of the four spent bullets recovered immediately above
the concrete subfloor under A.S.'s body and the single spent bullet found under the car in
the apartment's parking lot showed that Smith fired those bullets with a downward
trajectory. Also, the State's ballistics expert testified that based on his review of the shell
casings recovered from the apartment and the apartment parking lot, he believed that all
the recovered shell casings were fired from the same gun. His testing also eliminated the
holstered Smith and Wesson handgun found in the apartment's master bedroom from
firing the shell casings recovered from the apartment and the apartment parking lot.

As for A.S.'s gunshot wounds, Dr. Michael S. Handler, the forensic
neuropathologist who completed A.S.'s autopsy, testified that A.S. had six gunshot

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wounds to his body that he believed were caused by six distinct gunshots. Dr. Handler
specifically testified that those six gunshot wounds to A.S. were as follows: (1) a wound
caused by a bullet that entered A.S.'s left chest and exited A.S.'s right chest with a "front
to back, left to right, and horizontal" trajectory; (2) a wound caused by a bullet that
entered A.S.'s lower right abdomen and exited A.S.'s lower right side with a "front to
back, left to right, and upward" trajectory; (3) a wound caused by a bullet that entered
A.S.'s left, middle back and exited his right abdomen with a "left to right, back to front,
and downward" trajectory; (4) a wound caused by a bullet that entered A.S.'s groin area
and exited his left buttocks with a "front to back, right to left, and horizontal" trajectory;
(5) a wound caused by a bullet that entered A.S.'s left shoulder and never exited with a
"left to right, upward, and slightly forward" trajectory; and (6) a wound cause by a bullet
that entered and then exited A.S.'s left hand with an "upward" trajectory. Relatedly, the
State's blood pattern expert testified that the absence of blood staining on A.S.'s abdomen
meant that A.S. was primarily in a nonupright position when Smith shot him.

Finally, in addition to the preceding evidence, the State successfully admitted a
recording of a telephone conversation between Smith and another person on February 6,
2017, that occurred while Smith was in jail following his arrest. During this phone
conversation, Smith stated that A.S. "pull[ed] a weapon out with a baby in his hands."
When the person Smith was speaking to questioned him on this, Smith repeated that A.S.
was "holding the kid when he pulled the gun out."

Smith's evidence

To support his case, Smith mainly relied on his own testimony. Indeed, outside of
a friend's testimony about having a normal conversation with Smith a few hours before
the apartment shooting on February 2, 2017, Smith's testimony was the only evidence
supporting his claims of self-defense.

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 Smith testified that he went over to the apartment around 4 p.m. on February 2,
2017, to talk to A.S. about his $2,000 debt. According to Smith, he wanted to discuss
loan repayment options with A.S. because the previous week A.S. had told him the final
deadline to repay his debt was February 3, 2017. Smith explained that although A.S. did
not say what he would do to him if he did not repay the debt by February 3, 2017, he
knew that A.S. had a reputation for a short temper. He noted that A.S. had previously
been in an altercation, which ended with A.S. being "shot in the face." Smith therefore
wanted to figure out some sort of repayment plan before the deadline to avoid upsetting
A.S. despite not having enough money to repay the debt. On the repayment plan, Smith
testified that in addition to being a barber, he was a comedian. He explained that he was
hoping that A.S., who was an aspiring rapper, would allow him to repay the debt by
selling A.S.'s music at his comedy shows. He also explained that he was hoping that A.S.
would accept his video camera and laptop computer as partial repayment for the loan.

As for what happened next, Smith testified that when he arrived at the apartment,
A.S. answered the door and immediately asked him if he had his barber tools with him
because he wanted his hair trimmed. Smith stated that after telling A.S. that he could trim
his hair, he returned to his car, retrieved his barber tools, and retrieved the video camera
that he hoped A.S. would accept as partial repayment for his $2,000 debt. Smith alleged
that his barber tools were inside a beige bag, which he carried into the apartment.
Although Smith denied returning to his car to retrieve a gun, he alleged that once he
actually entered the apartment after retrieving his barber tools and video camera, he
noticed that there was a black handgun on the kitchen counter. When asked if the
presence of the black handgun concerned him at all, Smith testified that it did not because
it was not "unusual" for guns to be "out" in the apartment.

Smith testified that after he entered the apartment, he and A.S. went into the
master bedroom, where he assumed he would be trimming A.S. hair. Yet, he testified that
he never started trimming A.S.'s hair because as soon as they went into the master

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bedroom, A.S. started complaining about his debt. Smith alleged that it was at this point,
A.S. became angrier with him about his inability to repay his loan. He explained that as
A.S.'s anger increased, he saw B.G. leave the apartment while talking on her cell phone.
And he stated that shortly after he saw B.G. do this, he also exited the apartment so he
could retrieve his laptop from his car. Smith seemed to hope A.S. would calm down when
he realized Smith had also brought the laptop as partial payment for his debt.

But Smith testified that when he returned to the apartment with his laptop, which
was itself inside a black or brown satchel, B.G. requested to search his satchel before
allowing him to reenter the apartment. He stated that immediately after B.G. did this and
he reentered the apartment, though, A.S. approached him with a gun. He testified that
A.S. then put a gun up against his head and said, "[I]t's been six months, you got my
money. You think I am stupid? You are trying to play me. . . . I don't need no fucking
MacBook Pro. I got a MacBook Pro. I don't need no video. I need my money."

According to Smith, on reentering the apartment, he never noticed if K.S. was in
the living room area because he was completely focused on the fact that A.S. had a gun
against his head. Also, according to Smith, when A.S. put the gun against his head, he
reacted by putting his hands in the air. Yet, Smith testified that as he put his hands in the
air, he was able to twist A.S.'s gun downward so that a brief struggle over the gun ensued.
He testified that at the conclusion of this brief struggle, he and A.S. were standing upright
with A.S.'s back to his chest as he held the gun in his left hand. He stated that once they
were in this position, he kicked A.S. forward and attempted to shoot him in the buttocks
but instead shot him in the back.

Smith testified that following this first gunshot, A.S. fell to the ground. Then A.S.
attempted to drag him to the ground as well by pulling on his satchel. He further testified
that as A.S. tried to drag him to the ground, A.S. continued threatening to kill him. Smith
testified that it was at this point, he shot A.S. in the left shoulder. Then, he testified that

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because A.S. continued to pull on his satchel, he decided to shoot A.S. until he let go of
his satchel. When asked why he did not leave after firing the first two gunshots, Smith
explained that he did not leave because "[they] weren't done." Also, Smith testified that it
was not until after A.S. let go of his satchel that he realized that the gun in his hands was
not the black handgun he had seen earlier on the apartment's kitchen counter. Instead, he
explained it was then that he realized he was holding a silver handgun that he had never
seen before.

Smith contended that after A.S. let go of his satchel, he ran outside to tell B.G. to
call 911. Smith testified, however, that when he departed the apartment, B.G. dropped her
cell phone and reached for something, which he believed was the black handgun missing
from the apartment's kitchen counter. He testified that because he believed that B.G. was
trying to shoot him with the missing black handgun, he fired a "warning shot" "ahead,
and kind of to the right" into a car windshield to scare B.G. away. He also testified that as
B.G. ran away from him following this first warning shot, he shot the gun once in B.G.'s
direction before firing more shots off into the air. He indicated that he thought he needed
to shoot the gun in B.G.'s direction because B.G. had run off to his left and his car was
also parked to his left.

Smith testified that after doing this, he got into his car and drove off before briefly
returning to the apartment to retrieve his barber tools, video camera, and laptop. He
explained that once he left the apartment this time, he did not return. Instead, he conceded
that after leaving the apartment this final time, he tossed the silver handgun in a dumpster
before spending the night at a girlfriend's house and turning himself into law enforcement
the next day—February 3, 2017.

During his cross-examination, Smith made other concessions. He conceded that he
sustained no injuries from his alleged struggle with A.S. over the silver handgun. He
conceded that he never checked on either A.S.'s or K.S.'s well-being after the shooting.

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He conceded that he never called 911 so emergency services could quickly address A.S.'s
gunshot wounds. Although he still denied seeing K.S. in the apartment's living room or
kitchen area, he conceded that when he returned to the apartment to retrieve his barber
tools, video camera, and laptop, he could hear K.S. crying. And he conceded that when
he returned to the apartment, he went back into the kitchen specifically because "that's
where [his] satchel and [his] video camera was." When the prosecutor asked him if he
returned to the apartment after shooting A.S. to steal some of the marijuana and cash
located in the apartment's master bedroom, Smith denied returning to the apartment for
this purpose.

Jury instruction conference

At the jury instruction conference, the trial court granted Smith's request to
instruct the jury on attempted intentional second-degree murder and imperfect self-
defense attempted voluntary manslaughter as lesser included offenses of his attempted
intentional first-degree murder charge for the attempted killing of B.G. The trial court
also granted Smith's request to instruct the jury on intentional second-degree murder and
voluntary manslaughter on sudden quarrel as lesser included offenses to his intentional
first-degree murder charge for the killing of A.S. But it denied Smith's request to instruct
the jury on imperfect self-defense involuntary manslaughter as stated under K.S.A. 2016
Supp. 21-5405(a)(4) as a lesser included offense of his intentional first-degree murder
charge for the killing of A.S. Also, over Smith's objection, the trial court granted the
State's request to give a forcible felony instruction regarding the evidence indicating
Smith might have been involved in a marijuana sale when the shooting occurred.

Verdicts

In the end, the jury acquitted Smith of using a communication facility to commit a
drug crime. But it convicted Smith of the aggravated endangerment of K.S. and criminal

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possession of a firearm. Also, it found Smith guilty of the on sudden quarrel voluntary
manslaughter of A.S. and the imperfect self-defense attempted voluntary manslaughter of
B.G.

Sentencing

At sentencing, for each of his crimes, the trial court sentenced Smith to the
standard presumptive sentence under the revised Kansas Sentencing Guidelines Act
(KSGA) based on his criminal history score of A. It also ran each of Smith's sentences
consecutive. As a result, the trial court imposed on Smith a total controlling sentence of
279 months' imprisonment followed by 36 months' postrelease supervision.

Smith now timely appeals his convictions and sentences.

ANALYSIS

Did the trial court err when instructing the jury?

In his primary argument on appeal, Smith contends that the trial court erred when
it instructed the jury in multiple ways: First, Smith asserts that the trial court should have
instructed the jury on imperfect self-defense. In particular, he argues that the trial court
erred when it denied his request to instruct the jury on imperfect self-defense involuntary
manslaughter as a lesser included offense of his intentional first-degree murder charge for
the killing of A.S. And although he never requested the instruction, he argues that the
trial court clearly erred when it failed to instruct the jury on imperfect self-defense
attempted involuntary manslaughter as a lesser included offense of his attempted
intentional first-degree murder charge for the attempted killing of B.G. Second, Smith
asserts that the trial court clearly erred when it gave the jury a forcible felony instruction,
which stated that the jury must reject his self-defense claims if it believed that he used
force to defend himself while selling marijuana or aiding in the sale of marijuana. Third,

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Smith contends that the trial court clearly erred when it failed to instruct the jury on
misdemeanor child endangerment as a lesser included offense of his aggravated child
endangerment charge for endangering K.S.

Standard of review

When considering jury instruction issues, this court employs a three-step review
process: First, this court must determine whether "'there is a lack of appellate jurisdiction
or a failure to preserve the issue for appeal.'" State v. McLinn, 307 Kan. 307, 317, 409
P.3d 1 (2018). Second, if this court concludes that the jury instruction issue is properly
before it, this court must consider whether an error actually occurred by determining
whether the disputed instruction was legally and factually appropriate. Third, if this court
determines that the disputed instruction was both legally and factually appropriate, this
court must consider whether the jury instruction error can be deemed harmless. 307 Kan.
at 317.

Importantly, under the second step of the review process, this court must consider
whether the disputed jury instruction was both legally and factually appropriate based on
an unlimited review of the entire record. 307 Kan. at 318. Yet, this court evaluates
whether a defendant's requested instruction was factually appropriate by analyzing
whether the evidence supported giving the instruction when viewed in the light most
favorable to the defendant. State v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101
(2016). Also, when considering challenges involving lesser included offense instructions,
the trial court has a duty to give a defendant's requested lesser included offense
instruction as long as "some evidence" supports giving the instruction. See State v.
Armstrong, 299 Kan. 405, 432, 324 P.3d 1052 (2014). Thus, a trial court errs by denying
a defendant's requested lesser included offense instruction if, when viewed in the light
most favorable to the defendant, some trial evidence supported giving the instruction.

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 Meanwhile, under the third step of this court's review process, the applicable
harmlessness test depends on whether the defendant requested or objected to the giving
of the disputed instruction before the trial court. If the defendant made the jury
instruction argument below, the court must apply the test and applicable degree of
certainty set forth in State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011). State v.
Louis, 305 Kan. 453, Syl. ¶ 1, 384 P.3d 1 (2016). If the defendant is raising the jury
instruction argument for the first time on appeal, however, the defendant must establish
that the instruction error was clearly erroneous. This means that the defendant must
firmly convince this court that the jury would have reached a different verdict but for the
instruction error. McLinn, 307 Kan. at 318. So under the first step of this court's three-
step review process, a defendant's failure to raise his or her jury instruction argument
before the trial court does not prevent this court from considering the merits of the
defendant's jury instruction argument on appeal. Instead, a defendant's failure to raise his
or her jury instruction argument below merely affects this court's reversibility inquiry
under the third step. 307 Kan. at 317.

Finally, to the extent Smith's jury instruction arguments also involve statutory
construction issues, statutory interpretation is a question of law over which we exercise
unlimited review. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). In contrast,
to the extent Smith's jury instruction arguments also involve sufficiency of the evidence
issues, when considering such arguments, we must determine whether a rational fact-
finder could have found the defendant guilty beyond a reasonable doubt when viewing all
the evidence in the light most favorable to the State. State v. Chandler, 307 Kan. 657,
668, 414 P.3d 713 (2018).

Imperfect self-defense instructions

K.S.A. 2020 Supp. 21-5222(a) states that "[a] person is justified in the use of force
against another when and to the extent it appears to such person and such person

14
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." Also, under K.S.A. 2020
Supp. 21-5222(b), a person may use deadly force against another when and to the extent
it appears to such person and "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." As a result, K.S.A. 2020 Supp. 21-5222 provides that on another person's
imminent use of unlawful or deadly force, a person may respond by using equal force to
defend himself or herself. But per K.S.A. 2020 Supp. 21-5222's plain language, the
person acting in self-defense must also "reasonably believe" that using such force was
necessary for his or her protection.

In the past, our Supreme Court has explained that the type of self-defense
described under K.S.A. 2020 Supp. 21-5222(a)-(b) is "perfect self-defense." See State v.
Kirkpatrick, 286 Kan. 329, 339, 184 P.3d 247 (2008), abrogated on other grounds by
State v. Barlett, 308 Kan. 78, 418 P.3d 1253 (2018). When properly invoked by a
defendant, "[p]erfect self-defense is a concept based on justification or excuse and
operates as a complete defense." 286 Kan. at 339. Also, a defendant may argue perfect
self-defense in response to "all crimes involving the use of force against another." 286
Kan. at 339.

Nevertheless, in addition to perfect self-defense, our Supreme Court has
recognized that a defendant may argue imperfect self-defense. "Imperfect self-defense
. . . is based not on justification, but on mitigation and, thus, operates only to reduce
criminal culpability to a lesser crime." 286 Kan. at 339. This means that "[i]mperfect self-
defense is 'not a true defense; it does not absolve a defendant of criminal liability. It is,
rather, a lesser degree of the crime of homicide.'" 286 Kan. at 339. As a result,
"[i]mperfect self-defense exists only as a lesser degree of homicide in voluntary
manslaughter . . . and in involuntary manslaughter." 286 Kan. at 339. Specifically,
imperfect self-defense exists as a lesser degree of homicide in voluntary manslaughter

15
under K.S.A. 2020 Supp. 21-5404(a)(2), which is the knowing killing of a human being
"upon an unreasonable but honest belief that circumstances existed that justified use of
deadly force." And it exists as a lesser degree of homicide in involuntary manslaughter
under K.S.A. 2020 Supp. 21-5405(a)(4), which is the killing of a human being committed
"during the commission of a lawful act in an unlawful manner."

As a result, although perfect self-defense is a complete defense, imperfect self-
defense is not. It merely allows the defendant to argue that he or she is guilty of voluntary
manslaughter or involuntary manslaughter as opposed to first-degree or second-degree
murder because the victim's initial aggression justified the use of some force in self-
defense. Yet, by arguing imperfect self-defense, a defendant also necessarily concedes
that the ultimate killing of the victim was illegal. That is to say, by arguing imperfect
self-defense, the defendant alleges that the victim's initial aggression warranted a
response in self-defense but at the same time concedes that the ultimate force he or she
inflicted on the victim in self-defense was excessive under the facts of the case. See State
v. James, 309 Kan. 1280, 1302, 443 P.3d 1063 (2019).

Also, it is important to note that although the elements of imperfect self-defense
voluntary manslaughter and imperfect self-defense involuntary manslaughter seem
similar, the key difference between the two statutes is whether the defendant ever had a
valid self-defense claim. A defendant who has committed an imperfect self-defense
voluntary manslaughter under K.S.A. 2020 Supp. 21-5404(a)(2) never had a valid self-
defense claim. Instead, although that defendant honestly believed that he or she needed to
use deadly force, that defendant's conduct was criminal because it was an unreasonable
belief. Conversely, a defendant who has committed imperfect self-defense involuntary
manslaughter under K.S.A. 2020 Supp. 21-5405(a)(4) originally had a valid self-defense
claim but during the altercation with the victim ultimately used excessive force. Hence,
the defendant engaged in a lawful act—self-defense—but engaged in this lawful act in an
unlawful manner—excessive force.

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 As previously mentioned, during the jury instruction conference, Smith did not ask
the trial court to instruct the jury on imperfect self-defense attempted involuntary
manslaughter as a lesser included offense of his attempted intentional first-degree murder
charge for the attempted killing of B.G. Smith did, however, ask the trial court to instruct
the jury on imperfect self-defense involuntary manslaughter as a lesser included offense
of his intentional first-degree murder charge for the killing of A.S. But the trial court
denied this request by relying on State v. Bailey, 263 Kan. 685, 691, 952 P.2d 1289
(1998), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317
(2006). It concluded that the facts of Smith's case were comparable to Bailey's case—a
case where our Supreme Court affirmed the trial court's refusal to instruct on reckless
involuntary manslaughter as a lesser included offense of intentional first-degree murder
because the trial evidence indicated that Bailey killed the victim intentionally. Bailey, 263
Kan. at 688-91.

Now, on appeal, Smith argues that the trial court committed reversible error when
it failed to instruct the jury on imperfect self-defense involuntary manslaughter as a lesser
included offense of his intentional first-degree murder charge for the killing of A.S. and
imperfect self-defense attempted involuntary manslaughter as a lesser included offense of
his attempted intentional first-degree murder charge for the attempted killing of B.G.
Smith begins his analysis by taking issue with the trial court's reliance on Bailey to deny
his imperfect self-defense involuntary manslaughter of A.S. instruction request. He
argues that the trial court's reliance on Bailey was misplaced because the Bailey decision
did not involve an imperfect self-defense jury instruction issue. He then stresses that the
trial court had a duty to instruct the jury on all lesser included offenses he had requested
for which there was some evidence to support his conviction. And he contends that his
case is comparable to this court's recent decision in State v. Pulliam, 308 Kan. 1354,
1369-70, 430 P.3d 39 (2018), where our Supreme Court held that the trial court erred by
not instructing the jury on imperfect self-defense involuntary manslaughter. Based on this

17
comparison, Smith argues that the trial court had to give the jury the disputed imperfect
self-defense instructions.

The State responds that although both instructions were legally appropriate, the
trial court did not err by failing to give either the imperfect self-defense involuntary
manslaughter or the imperfect self-defense attempted involuntary manslaughter
instructions because neither instruction was factually appropriate. See Pulliam, 308 Kan.
at 1362 (noting that both voluntary manslaughter and involuntary manslaughter are lesser
included offenses of first-degree murder). Although not entirely clear, it seems the State
believes that the instruction on imperfect self-defense involuntary manslaughter as a
lesser included offense of Smith's intentional first-degree murder charge for the killing of
A.S. was factually inappropriate because by convicting him of voluntary manslaughter,
the jury must have believed Smith's testimony about A.S. threatening his life while
putting a gun against his head. Thus, according to the State, "there was no factual
scenario" in which the jury could have found Smith's "use of deadly force was excessive"
as to warrant the imperfect self-defense involuntary manslaughter instruction.
Alternatively, the State argues that we should affirm Smith's voluntary manslaughter of
A.S. conviction because any error stemming from the trial court's refusal to instruct the
jury on imperfect self-defense involuntary manslaughter as a lesser included offense was
harmless "[f]or the same reason that the instruction was not factually appropriate."

As for Smith's argument that the trial court erred by not instructing the jury on
imperfect self-defense attempted involuntary manslaughter as a lesser included offense of
his attempted intentional first-degree murder charge for the attempted killing of B.G., the
State asserts that this instruction was also factually inappropriate. It contends that under
the trial evidence presented, the jury had to either accept or reject Smith's self-defense
claim as it pertained to B.G. And it once again alternatively argues that we should affirm
Smith's attempted voluntary manslaughter of B.G. conviction because any error

18
stemming from the trial court's failure to give the disputed instruction was harmless "[f]or
the same reason that the instruction was not factually appropriate."

Imperfect self-defense involuntary manslaughter

As just noted, the State's analysis why Smith's requested instruction on imperfect
self-defense involuntary manslaughter was factually inappropriate seemingly hinges on
its contention that the jury must have believed Smith's testimony about A.S. threatening
his life while putting a gun against his head given its decision to convict Smith of the
voluntary manslaughter of A.S. It seems the State believes that because the jury
convicted Smith of the voluntary manslaughter of A.S., the jury would never have
convicted Smith of the imperfect self-defense involuntary manslaughter of A.S. even if it
had been given this option.

But how the jury may have interpreted the evidence is not the proper inquiry at
this stage of this court's review process. Instead, when considering whether a disputed
lesser included offense instruction is factually appropriate, both the trial court and this
court must review whether some evidence supports giving the instruction. See Armstrong,
299 Kan. at 432. So despite the State's apparent argument otherwise, the jury's thought-
process during deliberations has no bearing on the factual appropriateness of Smith's
requested instruction on imperfect self-defense involuntary manslaughter as a lesser
included offense of his intentional first-degree murder charge for the killing of A.S.

Also, Smith's complaint about the trial court's reliance on Bailey to deny his
request for an instruction on imperfect self-defense involuntary manslaughter has merit.
When it denied Smith's request for an instruction on imperfect self-defense involuntary
manslaughter, the trial court explained that it was relying on the Bailey decision to deny
the request because "[i]n that case, [our Supreme] Court reasoned that a defendant's
actions in pointing a gun at an individual and pulling the trigger are intentional rather

19
than reckless." Clearly, however, the trial court's reliance on Bailey was misplaced
because as argued by Smith, the Bailey decision involved the trial court's refusal to give a
reckless involuntary manslaughter instruction, not an imperfect self-defense involuntary
manslaughter instruction. 263 Kan. at 691. Thus, the trial court's sole justification for
denying Smith's imperfect self-defense involuntary manslaughter instruction request was
erroneous.

Most importantly, though, Smith's reliance on Pulliam and the argument that some
evidence supported the factual appropriateness of his imperfect self-defense involuntary
manslaughter instruction request is persuasive.

In Pulliam, our Supreme Court held that the trial court erred when it failed to
instruct the jury on imperfect self-defense involuntary manslaughter as a lesser included
offense to intentional second-degree murder simply because Pulliam had testified that "he
heard a gun cock and thought that he was about to be shot in the back" by the victim. 308
Kan. at 1369. Our Supreme Court explained the trial court had to instruct the jury on
imperfect self-defense involuntary manslaughter because Pulliam's testimony constituted
some evidence that he had a valid claim of self-defense against the victim but ultimately
used excessive force by shooting the victim three or four times. 308 Kan. at 1369. Also,
in reaching this holding, our Supreme Court explained that it was irrelevant whether other
evidence, like Pulliam's previous statement to a detective, contradicted Pulliam's trial
testimony about the victim being the initial aggressor. 308 Kan. at 1369.

Thus, the Pulliam decision establishes that even when only the defendant's
conflicting testimony supports giving an imperfect self-defense involuntary manslaughter
instruction, the defendant's conflicting testimony constitutes some evidence requiring the
trial court to instruct the jury on imperfect self-defense involuntary manslaughter as a
lesser included offense. As applied to this case, this means that the trial court should have
instructed the jury on imperfect self-defense involuntary manslaughter under K.S.A. 2016

20
Supp. 21-5405(a)(4) as a lesser included offense to Smith's intentional first-degree
murder charge for the killing of A.S. as long as there was some evidence, even if that
evidence was just Smith's conflicting testimony, indicating that A.S.'s initial aggression
permitted Smith to react in self-defense but that Smith's ultimate use of force against A.S.
in self-defense was excessive. See James, 309 Kan. at 1302. Here, not only did Smith's
testimony constitute some evidence that he committed the imperfect self-defense
involuntary manslaughter of A.S., but also his testimony about A.S. being the initial
aggressor was far more detailed, consistent, and convincing than Pulliam's testimony
about hearing the victim cock a gun.

To review, Smith testified that he went over to the apartment on February 2, 2017,
to talk to A.S. about potential repayment options for his $2,000 debt. He testified that
after he entered the apartment with his barber tools, he noticed a black handgun on the
kitchen counter. He testified that as soon as he and A.S. entered the master bedroom
where he normally trimmed A.S.'s hair, A.S. became increasingly angrier about his
inability to repay his debt, which resulted in him leaving the apartment to retrieve his
laptop from his car to offer it as partial repayment for this debt. Also, he testified that as
soon as he reentered the apartment with his black satchel containing the laptop, A.S. put a
gun up against his head while stating: "[I]t's been six months, you got my money. You
think I am stupid? You are trying to play me. . . . I don't need no fucking MacBook Pro. I
got a MacBook Pro. I don't need no video. I need my money."

Even so, Smith also explained that after he gained control of A.S.'s gun following
a short struggle, he shot A.S. a total of six times. He testified that immediately after he
gained control of the gun, he attempted to shoot A.S. in the buttocks, but instead shot
A.S. in the back as he kicked A.S. forward. He explained that he then shot A.S. in the left
shoulder because A.S., who was now lying on the floor, was pulling on his black satchel,
attempting to drag him onto the floor as well. He explained that after shooting A.S. the
second time, he decided to shoot A.S. until A.S. let go of his black satchel. When asked

21
why he did not leave after shooting A.S. the second time, Smith explicitly stated that after
shooting A.S. twice, he continued to shoot him because he and A.S. "weren't done."

In summary, Smith clearly testified that A.S. was the initial aggressor during their
altercation inside the apartment on February 2, 2017. Because Smith testified that A.S.
cursed at him as he put a gun against his head, some evidence supported Smith's claim of
self-defense against A.S. As a result, the trial court needed to instruct the jury on perfect
self-defense as stated under K.S.A. 2016 Supp. 21-5222(a)-(b). But at the same time,
because Smith testified about shooting A.S. a total of six times, including five times after
A.S. was already lying on the floor of the apartment suffering from his first gunshot
wound, some evidence also supported Smith's claim of imperfect self-defense involuntary
manslaughter.

In fact, according to Dr. Handler's trial testimony, Smith's very first gunshot at
A.S. pierced A.S.'s liver and was fatal absent quick medical intervention. Thus, some
evidence supported that all but one of Smith's six gunshots into A.S.'s body were literal
overkill. And notwithstanding this, there is certainly a strong argument that after Smith
gained control of the gun, shot A.S. through the liver, and shot A.S. through the left
shoulder, A.S. no longer posed an imminent danger to Smith even if A.S. continued to
grasp hold of his black satchel. So at minimum, some evidence supported that Smith's
final four gunshots into A.S.'s body were excessive. As a result, the trial court should
have instructed the jury on imperfect self-defense involuntary manslaughter as a lesser
included offense of Smith's intentional first-degree murder charge for the killing of A.S.

Because the trial court erred when it denied Smith's request to instruct the jury on
imperfect self-defense involuntary manslaughter as a lesser included offense of his
intentional first-degree murder charge for the killing of A.S., we must consider whether
the trial court's error was harmless. Recently, in State v. Becker, 311 Kan. 176, Syl. ¶ 4,
459 P.3d 173 (2020), our Supreme Court held that in noncapital cases, the trial court's

22
"failure to instruct on a lesser included offense does not impair a defendant's
constitutional right to a trial by jury or right to due process." So the trial court's
instructional error did not infringe upon Smith's constitutional rights. For us to uphold
Smith's voluntary manslaughter conviction for the killing of A.S., we must determine
whether there is a reasonable probability that the trial court's failure to instruct the jury on
imperfect self-defense involuntary manslaughter as a lesser included offense of his
intentional first-degree murder charge for the killing of A.S. affected the outcome of
Smith's trial in light of the entire record. See Ward, 292 Kan. 541, Syl. ¶ 6; K.S.A. 2020
Supp. 60-261. Also, as the party benefiting from the instruction error, the State carries the
burden of establishing harmlessness. See State v. De La Torre, 300 Kan. 591, 609, 331
P.3d 815 (2014) (holding that party benefiting from error carries burden to demonstrate
harmlessness regardless of whether constitutional harmless error test or nonconstitutional
harmless error test under K.S.A. 60-261 applies).

But the entirety of the State's harmlessness argument is that any error stemming
from the trial court's failure to instruct the jury on imperfect self-defense involuntary
manslaughter was harmless "[f]or the same reason that the instruction was not factually
appropriate." As explained in the preceding paragraphs, though, the instruction was
factually appropriate based on Smith's testimony. Thus, the State's sole argument as to
why the trial court's failure to instruct the jury on imperfect self-defense involuntary
manslaughter is harmless is unpersuasive. Because the State carries the burden of
establishing harmlessness, the State's failure to adequately brief its harmlessness
argument is fatal. See State v. Lowery, 308 Kan. 1183, 1231, 427 P.3d 865 (2018)
(holding that an argument raised incidentally in a party's brief and not argued therein is
deemed inadequately briefed and therefore abandoned).

All the same, it is worth noting that even if the State had not abandoned its
harmlessness argument, the State could not establish that the trial court's failure to give
the imperfect self-defense involuntary manslaughter instruction was harmless beyond a

23
reasonable doubt. As recognized by the State in its brief, the jury rejected its theory that
Smith shot A.S. with premeditation during a marijuana sale that went wrong; this is
evidenced by the jury's decision to convict Smith of voluntary manslaughter and acquit
Smith of using a communication facility to engage in a drug crime. But most importantly,
by convicting Smith of the voluntary manslaughter of A.S. on a sudden quarrel as stated
under K.S.A. 2016 Supp. 21-5404(a)(1), the jury necessarily believed Smith's testimony
that he never intended on killing A.S. Otherwise, it would have convicted him under the
first-degree intentional or second-degree intentional murder options. Thus, the fact that
the jury convicted Smith of the on sudden quarrel voluntary manslaughter—the least
severe form of homicide it was instructed on—suggests that the jury believed the most
important part of Smith's defense—that he never went into the apartment with the
intention of killing A.S. but instead acted in self-defense. As a result, the jury's rejection
of the State's theory supports that had it been given the option, the jury may very likely
have convicted Smith of the imperfect self-defense involuntary manslaughter of A.S.
under K.S.A. 2016 Supp. 21-5405(a)(4) because it believed Smith had a valid claim of
self-defense against A.S. but ultimately used excessive force while defending himself.

In short, because the jury rejected the State's theory of its case by acquitting Smith
of using a communication facility to engage in a drug crime and finding Smith guilty of
voluntary manslaughter, it is very probable that if given the option to convict Smith of
imperfect self-defense involuntary manslaughter under K.S.A. 2016 Supp. 21-5405(a)(4),
the jury would have done so. Thus, the trial court's failure to instruct the jury on
imperfect self-defense involuntary manslaughter was not harmless.

For this reason, we reverse Smith's conviction for the on sudden quarrel voluntary
manslaughter of A.S. under K.S.A. 2016 Supp. 21-5404(a)(1), vacate his corresponding
sentence, and remand the case for a new trial on whether Smith committed (1) an on
sudden quarrel voluntary manslaughter of A.S. under K.S.A. 2020 Supp. 21-5404(a)(1)
or (2) an imperfect self-defense involuntary manslaughter of A.S. under K.S.A. 2020

24
Supp. 21-5405(a)(4). See K.S.A. 2020 Supp. 21-5110(e) (stating that "[i]n no case where
a conviction for a lesser included crime has been invalidated, set aside, reversed or
vacated shall the defendant be subsequently prosecuted for a higher degree of the crime
for which such defendant was originally convicted"); see also In re Berkowitz, 3 Kan.
App. 2d 726, Syl. ¶ 11, 602 P.2d 99 (1979) (holding that "[w]hen a conviction is set aside
any new trial is limited to the crime originally charged or, if conviction was on a lesser
included offense, the included crime for which the defendant was convicted").

Imperfect self-defense attempted involuntary manslaughter

Once more, although the State agrees that the instruction would have been legally
appropriate, the State asserts that an instruction on imperfect self-defense attempted
involuntary manslaughter as a lesser included offense of Smith's attempted intentional
first-degree murder charge for the attempted killing of B.G. was factually inappropriate
because none of the evidence presented at Smith's trial supported a finding that Smith
initially shot at B.G. in self-defense but then used excessive force. It contends that under
the evidence presented at Smith's trial, the jury only had two options: It could accept
Smith's self-defense claim or it could reject Smith's self-defense claim.

According to Smith's trial testimony, he believed that B.G. was grabbing for the
missing black handgun when she dropped her cell phone, but he never actually saw B.G.
holding the black handgun. When asked, Smith explicitly testified that he had never seen
a gun on B.G. before. Because the evidence indicates that Smith never actually saw B.G.
with the black handgun before shooting towards B.G., Smith's imperfect self-defense
claim against B.G. is much weaker than his imperfect self-defense claim against A.S. The
entirety of his imperfect self-defense claim against B.G. hinges on a belief he had that
B.G. was dropping her cell phone to grab for the missing black handgun. Thus, Smith's
testimony that he believed B.G. was grabbing for the black handgun is evidence that
Smith was attempting to knowingly kill B.G. on an unreasonable but honest belief that

25
she was reaching for the black handgun—an unreasonable but honest belief that
circumstances existed justifying his use of deadly force as required to commit an
imperfect self-defense attempted voluntary manslaughter under K.S.A. 2016 Supp. 21-
5404(a)(2) and K.S.A. 2016 Supp. 21-5301 (the attempt statute)—which is the crime the
jury ultimately convicted Smith of committing against B.G.

Indeed, it was uncontroverted that Smith was the initial aggressor. Smith testified
that he never saw B.G. holding the black handgun. On the other hand, B.G. testified that
Smith shot at her five to six times in total, with one bullet making a hole in her sweatshirt
as it grazed her right arm. The State introduced photos that showed a hole in the right arm
of B.G.'s sweatshirt.

Because Smith did not request the imperfect self-defense attempted involuntary
manslaughter instruction, however, Smith must establish that the trial court's failure to
give the instruction was clearly erroneous by firmly convincing us that the jury would
have reached a different verdict but for the instruction error. See McLinn, 307 Kan. at
318. In his brief, Smith argues that the trial court's failure to give this instruction as a
lesser included offense of his attempted intentional first-degree murder charge for the
attempted killing of B.G. was clearly erroneous because "[f]rom the evidence, the jury
could find that [he] acted to defend himself from a perceived threat from [B.G.], but the
circumstances did not justify his use of deadly force."

But like the State's earlier harmlessness argument, Smith has inadequately briefed
his argument that the trial court's failure to instruct the jury on imperfect self-defense
attempted involuntary manslaughter constituted clear error. Smith's mere contention that
the jury may have found him guilty of imperfect self-defense involuntary manslaughter
because some evidence supported that he committed an imperfect self-defense attempted
involuntary manslaughter against B.G. is conclusory. Smith has included no references to
facts or analysis to support his argument. In a nutshell, Smith has raised his clear error

26
argument incidentally in his brief and has not argued it there. As a result, we reject
Smith's argument because Smith has inadequately briefed and thus abandoned his ability
to argue the trial court committed clear error by not instructing the jury on imperfect self-
defense attempted involuntary manslaughter. See Lowery, 308 Kan. at 1231 (holding that
argument raised incidentally in party's brief and not argued therein is deemed
inadequately briefed and therefore abandoned).

Because we have determined that there was no evidence justifying an imperfect
self-defense attempted involuntary manslaughter instruction, we reject Smith's argument
to reverse his attempted voluntary manslaughter conviction for the attempted killing of
B.G.

Forcible felony instruction

Once more, K.S.A. 2020 Supp. 21-5222(a) allows a person to use 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." And under K.S.A. 2020 Supp. 21-
5222(b), a person may use deadly force against another when "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." Yet, K.S.A. 2020 Supp. 21-5226(a)
prohibits a person from using the force described under K.S.A. 2020 Supp. 21-5222(a)-
(b), when that person uses such force while "attempting to commit, committing or
escaping from the commission of a forcible felony." (Emphasis added.) As a result, a
defendant cannot validly argue self-defense if that defendant took his or her defensive
actions while engaging in a forcible felony.

K.S.A. 2020 Supp. 21-5111(n) defines the term "forcible felony." It provides that
whenever the term forcible felony appears in the Kansas Criminal Code, the term

27
encompasses "any treason, murder, voluntary manslaughter, rape, robbery, burglary,
arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which
involves the use or threat of physical force or violence against any person." (Emphasis
added.) Thus, under the plain language of K.S.A. 2020 Supp. 21-5111(n), in addition to
the listed felonies, a forcible felony includes all felonies involving threats of physical
force or violence against another person.

As previously mentioned, during the jury instruction conference, the trial court
granted the State's request to give a forcible felony instruction regarding the evidence
indicating Smith might have been involved in a marijuana sale over Smith's objection. As
a result, in addition to instructing the jury on the elements of marijuana distribution, the
trial court instructed the jury that "[a] person is not permitted to use physical force in
defense of himself if he is attempting to commit, committing, or escaping after the
commission of distribution of marijuana." Of note, the trial court provided the jury with
an aider and abettor instruction; thus, the jury also had the option of rejecting Smith's
self-defense claim if it believed Smith aided or abetted A.S. in the commission of selling
marijuana.

In his brief, Smith recognizes that K.S.A. 2020 Supp. 21-5226(a) authorized the
trial court to give the forcible felony instruction had he killed A.S. during the commission
of a forcible felony as meant under K.S.A. 2020 Supp. 21-5111(n)'s definition of forcible
felony. And in passing, he also recognizes that our Supreme Court has held that the
attempted sale of marijuana constitutes a forcible felony prohibiting a defendant from
arguing self-defense in State v. Beltz, 305 Kan. 773, 781, 388 P.3d 93 (2017). Still, Smith
argues that the trial court erred when it gave the forcible felony instruction because the
plain language of K.S.A. 2020 Supp. 21-5705—the unlawful distribution of a controlled
substance statute—establishes that selling marijuana is not a forcible felony as meant
under the plain language of K.S.A. 2020 Supp. 21-5111(n)'s forcible felony definition.
He further contends that this error requires reversal of all his convictions.

28
 To support this argument, Smith reviews the Kansas caselaw addressing what
constitutes a forcible felony prohibiting a defendant from arguing self-defense. Following
his review, he contends that Kansas appellate courts have wrongly conflated the term
forcible felony as meant under K.S.A. 2020 Supp. 21-5111(n)'s forcible felony definition
with the term "inherently dangerous felony" as meant under K.S.A. 2020 Supp. 21-
5402(a)(2)—the felony-murder statute. According to Smith, under the plain language of
K.S.A. 2020 Supp. 21-5111(n), only felonies that involve "violence, physical force, or the
threat of either" can constitute forcible felonies that prohibit defendants from arguing
self-defense. He thus concludes that the trial court erred when it gave the jury the forcible
felony instruction because per K.S.A. 2020 Supp. 21-5705's plain language, selling
marijuana is not a crime that involves violence, physical force, or the threat of either as
required to constitute a forcible felony under K.S.A. 2020 Supp. 21-5111(n)'s forcible
felony definition.

The State counters that we are duty bound to follow our Supreme Court's
precedent in Beltz. It argues that because the Beltz court ruled that the attempted sale of
marijuana constituted a forcible felony, we must similarly rule that the actual sale of
marijuana constitutes a forcible felony under K.S.A. 2020 Supp. 21-5226(a).
Alternatively, the State argues that any error resulting from the trial court's decision to
give the forcible felony instruction was harmless beyond a reasonable doubt. It contends
that because the jury rejected its theory about Smith intentionally killing A.S. during a
marijuana sale that went wrong, the trial court's forcible felony jury instruction had no
bearing on the jury's verdicts.

In short, we are persuaded by the State's arguments.

In Beltz, our Supreme Court rejected Beltz' argument that the trial court erred
when it denied his request to instruct the jury on self-defense because it concluded that
Beltz killed the victim while committing the forcible felony of attempting to sell

29
marijuana. On appeal, Beltz argued that the trial court erred by rejecting his requested
self-defense instruction because the attempted sale of marijuana was not a forcible felony
under K.S.A. 2020 Supp. 21-5226(a). But the Beltz court determined that the trial court
properly denied Beltz' self-defense instruction request because the attempted sale of
marijuana is a forcible felony. 305 Kan. at 781. In reaching this holding, the Beltz court
emphasized that Beltz and the other people involved in the disputed marijuana sale were
all carrying guns. It then noted that Kansas courts have "consistently found that the sale
of drugs under similar circumstances is a forcible felony." 305 Kan. at 781. So, in Beltz,
our Supreme Court held that drug sales, especially drug sales that involve guns, constitute
forcible felonies that prohibit a defendant from arguing self-defense as stated under
K.S.A. 2020 Supp. 21-5226(a).

Smith here freely acknowledged that it was not "unusual" for guns to be displayed
throughout A.S.'s apartment. Indeed, in justifying his self-defense claim against B.G.,
Smith testified that he believed B.G. had possession of the black handgun that he earlier
saw on the apartment's kitchen countertop. Thus, he shot at B.G. because he thought she
was reaching for this black handgun as he departed from the apartment.

It is a well-known rule that this court is duty bound to follow our Supreme Court
precedent absent some indication our Supreme Court is moving away from the previous
holding in dispute. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). Since
deciding Beltz in 2017, though, there has been no indication that our Supreme Court is
moving away from its longstanding position that drug sales, especially drug sales
involving guns, constitute forcible felonies under K.S.A. 2020 Supp. 21-5226(a).

In summary, because the Beltz holding remains good law, we are duty bound to
follow Beltz' precedent that drug sales, particularly those involving guns, constitute
forcible felonies under K.S.A. 2020 Supp. 21-5226(a). Thus, we rely on the Beltz holding

30
to reject Smith's argument that the trial court erred by giving the forcible felony jury
instruction.

Notwithstanding the preceding, any error stemming from the trial court's giving of
the forcible felony instruction was harmless beyond a reasonable doubt. This is because
by acquitting Smith of using a communication facility to engage in a drug crime, it
necessarily follows that the jury rejected its argument that Smith intentionally killed A.S.
during a marijuana sale, which is a forcible felony, that went wrong. Otherwise, the jury
would have convicted Smith of using a communication facility to engage in a drug crime
based on the text messages recovered from A.S.'s cell phone that the State offered as
evidence that Smith came over to the apartment the afternoon of February 2, 2017, to buy
marijuana from A.S. Because the jury rejected this theory, it follows that the jury also
disregarded the forcible felony instruction―stating that Smith was not permitted to use
force in self-defense while also committing the forcible felony of selling marijuana.

In short, we reject Smith's request to reverse his convictions based on the trial
court's giving of the forcible felony jury instruction for two reasons: (1) because the
Beltz decision establishes that the trial court properly gave the forcible felony instruction
and (2) because any error stemming from the trial court's giving of the forcible felony
instruction was otherwise harmless beyond a reasonable doubt.

Misdemeanor child endangerment instruction

To commit aggravated child endangerment under K.S.A. 2020 Supp. 21-
5601(b)(1), a person must "recklessly caus[e] or permit[] a child under the age of 18
years to be placed in a situation in which the child's life, body or health is endangered."
(Emphasis added.) Yet, to commit misdemeanor child endangerment under K.S.A. 2020
Supp. 21-5601(a), a person must have "knowingly and unreasonably caus[ed] or
permit[ed] a child under the age of 18 years to be placed in a situation in which the

31
child's life, body or health may be endangered." (Emphasis added.) Thus, the difference
between aggravated child endangerment and misdemeanor child endangerment is
whether the defendant actually endangered the child's life, body, or health. See State v.
White, 55 Kan. App. 2d 196, 201, 410 P.3d 153 (2017).

In his final jury instruction argument, Smith contends that although he never
requested an instruction on misdemeanor child endangerment, the trial court clearly erred
by failing to give the instruction as a lesser included offense of his aggravated child
endangerment charge for endangering K.S. Although Smith frames his argument as an
independent jury instruction issue, a review of Smith's argument establishes that it hinges
on his contention that insufficient evidence supported his aggravated child endangerment
conviction.

In making this argument, Smith stresses that in State v. Herndon, 52 Kan. App. 2d
857, Syl. ¶ 7, 379 P.3d 403 (2016), a panel of this court held that to convict a defendant
of aggravated child endangerment, "the State must prove not only that the defendant's
conduct was unjustifiable and a gross deviation from the reasonable standard of care, but
also that the defendant acted with the conscious realization that there was a substantial
risk that such conduct would place a child in peril." Relying on this holding, Smith
contends that insufficient evidence supported his aggravated child endangerment
conviction because he testified that he was unaware of K.S.'s presence when he shot A.S.
in self-defense. Smith further argues that insufficient evidence supported his conviction
because the fact that law enforcement found K.S. next to A.S.'s dead body does not mean
that he actually placed K.S.'s life, body, or health in danger. Based on these arguments,
Smith concludes (1) that the trial court had to instruct the jury on misdemeanor child
endangerment and (2) that the failure to give this instruction constituted reversible error.

The State counters that it presented ample evidence to support Smith's aggravated
child endangerment conviction. It contends that given the weight of this evidence,

32
although an instruction on misdemeanor aggravated child endangerment was legally
appropriate, it was not factually appropriate. It therefore asks us to reject Smith's
argument that the trial court erred by not instructing the jury on misdemeanor child
endangerment as a lesser included offense of his aggravated child endangerment charge
for endangering K.S.

As with Smith's forcible felony instruction argument, we are persuaded by the
State's arguments.

The State here correctly contends that there was overwhelming evidence
supporting Smith's aggravated child endangerment conviction. Smith's argument relies on
his own trial testimony that he never realized K.S. was nearby when he shot A.S. while at
the same time ignoring the strength of the State's circumstantial evidence indicating that
he actually endangered K.S.'s life, body, and health. Indeed, outside of Smith's trial
testimony, all of the evidence before the jury suggested that Smith knew K.S. was nearby
when he shot A.S. The law enforcement officers who initially arrived at the apartment, all
testified about finding K.S. lying on her stomach next to A.S.'s dead body. The State's
forensic biologist testified that A.S.'s blood caused the staining found on K.S.'s clothing.
Also, Santoro testified about the discovery of a spent bullet underneath K.S.'s baby
bouncer in the apartment's living room.

Smith complains that the fact that law enforcement found K.S. next to A.S.'s dead
body does not mean that he placed K.S.'s life, body, or health in danger. Nevertheless, the
location of K.S. next to the body of her dead father and the other evidence just mentioned
constituted significant circumstantial evidence that K.S. was nearby when the shooting
occurred. See State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016) (explaining that
even gravest offense may be entirely supported by circumstantial evidence so long as
such evidence allowed fact-finder to make reasonable inference of guilt). Stated another
way, all of this evidence constituted significant circumstantial evidence that Smith placed

33
K.S.'s life, body, or health in danger as required to commit aggravated child
endangerment under K.S.A. 2016 Supp. 21-5601(b)(1).

Plainly, this evidence, in and of itself, was substantial enough to support his
aggravated child endangerment conviction. See State v. Killings, 301 Kan. 214, 223, 340
P.3d 1186 (2015) (holding trial court's erroneous failure to instruct on lesser included
offense harmless beyond a reasonable doubt when overwhelming evidence supported
defendant's conviction). When one additionally considers Smith's recorded jail phone call
statement that A.S. "pull[ed] a weapon out with a baby in his hands," it is readily
apparent that Smith actually knew A.S. was holding K.S. when he shot him regardless of
his trial testimony. And even if we were to ignore this evidence, according to Smith's
own testimony, he not only abandoned K.S. after fatally shooting A.S., but he also failed
to check on K.S.'s welfare, despite hearing her crying, when he reentered the apartment to
recover his belongings after initially driving away. This constitutes overwhelming
evidence that Smith recklessly caused or permitted K.S. to be placed in a situation in
which her life was actually endangered as required to be convicted of aggravated child
endangerment under K.S.A. 2016 Supp. 21-5601(b)(1) regardless of his self-defense
claim against A.S. during the shooting inside the apartment.

Is Smith's criminal possession of a firearm conviction unconstitutional?

The jury convicted Smith of being a criminal in possession of a firearm contrary to
K.S.A. 2016 Supp. 21-6304(a)(1). K.S.A. 2020 Supp. 21-6304(a)(1) bars people who
have been previously convicted of a person felony from possessing a firearm if they
committed their prior person felony with a firearm. Also, violation of K.S.A. 2020 Supp.
21-6304(a)(1) constitutes a severity level 8, nonperson felony. K.S.A. 2020 Supp. 21-
6304(b).

34
 In his next argument on appeal, although Smith concedes that he violated the plain
language of K.S.A. 2020 Supp. 21-6304(a)(1), he contends that we should still reverse his
criminal possession of a firearm conviction because it is unconstitutional in light of the
2010 amendment to section 4 of the Kansas Constitution Bill of Rights. Smith argues that
the 2010 amendment to section 4 "never allows for the criminalization of mere
possession" of a firearm because it states that every Kansan has the "[i]ndividual right to
bear arms." In making this argument, Smith emphasizes the differences between the
amended section 4 and the Second Amendment to the United States Constitution. He
contends that we should interpret the amended section 4 as providing Kansans a broader
right to firearm possession than the right to firearm possession under the Second
Amendment because the Second Amendment merely discusses "the right of the people to
keep and bear arms." (Emphasis added.)

Nevertheless, as contended by the State, we reject Smith's argument that his
criminal possession of a firearm conviction violates section 4 of the Kansas Constitution
Bill of Rights because he is raising it for the first time on appeal.

Whether an appellant has preserved an argument for appeal constitutes a question
of law over which this court exercises unlimited review. State v. Haberlein, 296 Kan.
195, 203, 290 P.3d 640 (2012). Generally, this court does not consider arguments when
raised by appellants for the first time on appeal. State v. Phillips, 299 Kan. 479, 493, 325
P.3d 1095 (2014). But there are three exceptions to this rule: (1) when "[t]he newly
asserted theory involves only a question of law arising on proved or admitted facts and is
determinative of the case"; (2) when "consideration of the theory is necessary to serve the
ends of justice or to prevent the denial of fundamental rights"; and (3) when "the [trial]
court is right for the wrong reason." 299 Kan. at 493.

In his brief, Smith recognizes that he never challenged his criminal possession of a
firearm conviction as unconstitutional before the trial court. Even so, he asks us to

35
consider his newly raised constitutional challenge under the first and second exceptions
to the general rule about not considering arguments raised for the first time on appeal.
That is, he asserts that we should consider his constitutional challenge for the first time
on appeal because it only involves a question of law arising on proved or admitted facts
that is finally determinative of the case and because its consideration is necessary to
prevent the denial of his fundamental right to bear arms.

But Smith's preservation argument ignores that even if we could invoke one of the
exceptions to the general rule about not considering arguments raised for the first time on
appeal, we still have no duty to consider such arguments. In State v. Gray, 311 Kan. 164,
Syl. ¶ 1, 459 P.3d 165 (2020), our Supreme Court held: "The decision to review an
unpreserved claim under an exception is a prudential one. Even if an exception would
support a decision to review a new claim, [we have] no obligation to do so." Relying on
this rule, our Supreme Court "decline[d] to utilize any potentially applicable exception to
review Gray's new [identical offense doctrine] claim." 311 Kan. at 170. Also, it explained
that it would not review Gray's newly raised identical offense doctrine claim because by
not raising this argument before the trial court, Gray "deprived the trial judge of the
opportunity to address the issue in the context of this case" even though "such an analysis
would have benefited [its] review" on appeal. 311 Kan. at 170.

Here, we rely on Gray's precedent to decline Smith's request to consider his
criminal possession of a firearm conviction constitutional challenge for the first time on
appeal. In a nutshell, because Smith failed to raise his constitutional challenge before the
trial court, we lack the necessary factual, legal, and historical analysis in the record to
adequately address Smith's constitutional challenge. See also State v. Hastings,
No. 122,184, 2021 WL 2748215, at *2 (Kan. App. 2021) (unpublished opinion)
(declining to consider Hastings' identical constitutional challenge to his criminal
possession of a firearm conviction for first time on appeal relying on Gray); State v.
Valdez, No. 121,053, 2021 WL 1324023, at *3 (Kan. App. 2021) (unpublished opinion)

36
(declining to consider Valdez' identical constitutional challenge to his criminal
possession of a firearm conviction for first time on appeal because his failure to raise
argument below created inadequate record); State v. Miner, No. 122,372, 2021 WL
401282, at *2 (Kan. App. 2021) (unpublished opinion) (declining to consider Miner's
identical constitutional challenge to his criminal possession of a firearm conviction for
first time on appeal relying on Gray); State v. Pugh, No. 120,929, 2021 WL 218900, at
*4-5 (Kan. App. 2021) (unpublished opinion) (declining to consider Pugh's identical
constitutional challenge to his criminal possession of a firearm conviction for first time
on appeal because his failure to raise argument below created inadequate record); and
State v. Johnson, No. 121,187, 2020 WL 5587083, at *5 (Kan. App. 2020) (unpublished
opinion) (declining to consider Johnson's identical constitutional challenge to his criminal
possession of a firearm conviction for first time on appeal because his failure to raise
argument below created inadequate record).

So despite Smith's argument otherwise, we affirm his criminal possession of a
firearm conviction.

Did the trial court err when sentencing Smith?

The KSGA, K.S.A. 2020 Supp. 21-6801 et seq., creates a standardized sentencing
scheme based on the severity of an offender's current crime of conviction and criminal
history. K.S.A. 2020 Supp. 21-6814(a)-(c) provides that before relying on an offender's
criminal history to enhance his or her sentence, the offender must either admit his or her
criminal history in open court or the sentencing court must find that the State established
the offender's criminal history by a preponderance of the evidence. On the other hand,
section 5 of the Kansas Constitution Bill of Rights states: "The right of trial by jury shall
be inviolate." Also, when analyzing this language, our Supreme Court has consistently
held that "'[s]ection 5 preserves the jury trial right as it historically existed at common

37
law when our state's constitution came into existence.'" Hilburn v. Enerpipe Ltd., 309
Kan. 1127, 1133, 442 P.3d 509 (2019).

Here, it is undisputed that the trial court relied on Smith's criminal history score of
A to enhance his sentences for each of his crimes. For example, by categorizing Smith as
having a criminal history score of A, the trial court was able to impose a 233-month
prison sentence on Smith for his primary crime of the on sudden quarrel voluntary
manslaughter of A.S., which was his standard presumptive sentence under the KSGA.
Had the sentencing court not relied on Smith's criminal history to enhance his voluntary
manslaughter sentence, Smith's standard presumptive sentence under the KSGA for
committing the on sudden quarrel voluntary manslaughter of A.S. would have been 59
months' imprisonment. See K.S.A. 2020 Supp. 21-5404(a)(1), (b); K.S.A. 2020 Supp. 21-
6804(a).

In his final argument on appeal, Smith asserts that the trial court violated his jury
trial right under section 5 of the Kansas Constitution Bill of Rights when it used his
criminal history to enhance the severity of his underlying sentences. In making this
argument, he emphasizes that our Supreme Court has consistently held that section 5
preserves the jury trial right as it existed at common law. But he further contends that the
common-law jury trial right included an offender's right to have his or her criminal
history proven to a jury beyond a reasonable doubt before the sentencing court could rely
on such criminal history to enhance his or her sentence. He therefore concludes that
section 5 preserves an offender's common-law jury trial right to have his or her criminal
history proven to a jury beyond a reasonable doubt before the sentencing court could use
that offender's criminal history to enhance his or her sentence. And he argues that this, in
turn, means that the current KSGA sentencing scheme violates section 5 since it allows
the sentencing court to rely on an offender's criminal history to enhance the offender's
sentence without first proving that offender's criminal history to a jury beyond a
reasonable doubt. As a result, he asks us to vacate his sentences and remand the case to

38
the trial court with directions to resentence him without consideration of his criminal
history.

But as the State counters in its brief, Smith's constitutional challenge to the
validity of his sentences is unpersuasive because he is raising it for the first time on
appeal and because it is otherwise premised on a flawed legal argument. Once again,
whether an appellant has properly preserved an argument for appeal and whether a statute
is unconstitutional constitute questions of law over which this court exercises unlimited
review. Haberlein, 296 Kan. at 203; Dissmeyer v. State, 292 Kan. 37, 39, 249 P.3d 444
(2011).

In his brief, Smith recognizes that he is raising this constitutional challenge for the
first time on appeal. Still, he asks us to consider his argument for the first time on appeal
under the exceptions allowing for such consideration when the newly raised issue
involves only a question of law arising on proved or admitted facts that is finally
determinative of the case and when consideration of the newly raised issue is necessary to
serve the ends of justice. But we decline Smith's request. See Gray, 311 Kan. at 170
(holding that even if exception to general rule against considering issues for first time on
appeal applied, appellate courts have no obligation to apply such exception). In short, as
with his constitutional challenge to his criminal possession of a firearm conviction,
Smith's failure to raise this argument below means that the record, and therefore this
court, lacks the benefit of factual, legal, and historical analysis to adequately address his
current constitutional challenge to his sentences.

Affirmed in part, reversed in part, vacated in part, and remanded for a new trial on
whether Smith committed (1) an on sudden quarrel voluntary manslaughter of A.S. under
K.S.A. 2020 Supp. 21-5404(a)(1) or (2) an imperfect self-defense involuntary
manslaughter under K.S.A. 2020 Supp. 21-5405(a)(4).

39