State v. Berkstresser

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 122,557

STATE OF KANSAS,
Appellee,

v.

RYAN M. BERKSTRESSER,
Appellant.

SYLLABUS BY THE COURT

1.
When a party fails to brief an issue, that issue is deemed waived or abandoned.

2.
To determine whether a lesser included offense instruction is factually appropriate,
a court must consider whether there is some evidence, viewed in a light most favorable to
the defendant, emanating from whatever source and proffered by whichever party, that
would reasonably justify the defendant's conviction for that lesser included crime.

3.
A district court commits instructional error by failing to sua sponte give a lesser
included offense instruction that is both legally and factually appropriate. On appeal, to
obtain reversal of a conviction based on that error, a defendant who has failed to request
the instruction bears the burden to firmly convince a reviewing court the jury would have
reached a different verdict had the error not occurred.

1
4.
Appellate courts do not ordinarily consider an issue not raised by the parties but
may do so sua sponte when the issue's consideration is necessary to serve the ends of
justice or prevent the denial of fundamental rights after notice to the parties and allowing
them an opportunity to address the issue raised by the court.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 23,
2021. Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed December 2,
2022. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district
court is affirmed, and the case is remanded with directions.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

BILES, J.: The State challenges a Court of Appeals decision reversing Ryan M.
Berkstresser's conviction for felony fleeing or attempting to elude a police officer. The
panel ordered a new trial after it held the district court erred by failing to give an
unrequested jury instruction on a lesser included misdemeanor offense and that this error
justified reversal. State v. Berkstresser, No. 122,557, 2021 WL 6068708 (Kan. App.
2021) (unpublished opinion). We reverse the panel and affirm the conviction because the
panel misapplied the standard required to determine when such an instructional error
necessitates reversal.

If a reviewing court determines a district court erred by failing to give an
unrequested lesser included offense instruction, its next step is to consider the degree of
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resulting prejudice by deciding whether it is firmly convinced the jury would have
reached a different verdict had this instructional error not occurred. State v. Valdez, 316
Kan. 1, 6, 512 P.3d 1125 (2022). But here, after the panel found error, it reversed the
conviction because it held the jury "could have reasonably determined Berkstresser failed
to yield to the officer but did not drive with a willful or wanton disregard for the safety of
other persons or property as reflected in the dashcam video." (Emphasis added.)
Berkstresser, 2021 WL 6068708, at *6. This substantively differs from deciding whether
the court is firmly convinced the jury would have reached a different verdict on the
felony charge.

We hold the panel erred by using a lower standard of doubt about the outcome to
declare this unpreserved error reversible. See State v. Carter, 305 Kan. 139, 159, 380
P.3d 189 (2016) (clear error is in reality a heightened standard of harmlessness); Garner's
Modern American Usage, p. 869 (3d ed. 2009) ("Writers often use would to condition
statements that really ought to be straightforward."). We further hold the failure to give a
lesser included offense instruction for the misdemeanor offense was not clearly erroneous
because we are not firmly convinced based on the trial evidence that the jury would have
reached a different verdict if such an instruction had been given, so we affirm the
conviction.

That result, however, does not end the matter. We must remand this case to the
district court with directions to merge Berkstresser's two alternative convictions of felony
fleeing or attempting to elude a police officer under State v. Vargas, 313 Kan. 866, Syl.
¶¶ 1-3, 492 P.3d 412 (2021).

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 FACTUAL AND PROCEDURAL BACKGROUND

Neither party disputes what happened, although they portray the facts very
differently. Haysville Police Officer Randy Nowak noticed a Mitsubishi sedan following
too closely to another car. His dispatch advised the Mitsubishi's license plate was
assigned to a different vehicle. Nowak began a traffic stop by activating his patrol car's
overhead emergency lights and siren. His car displayed Haysville Police Department
decals. The driver, later identified as Berkstresser, did not stop. He increased his speed,
reaching 72 miles per hour in a 50-mile-per-hour zone.

Berkstresser turned west onto a country road, reaching 65 miles per hour in an
unposted area where Nowak believed the speed limit was 45. Berkstresser then went
north. In doing so, he made a complete stop at a stop sign but did not properly signal the
turn. He pulled into a residential driveway and drove across two front yards—near
multiple parked vehicles and a bystander—before moving back onto the street without
stopping or yielding. Again headed north, he swerved right across the fog line toward a
ditch then left across the center line into the southbound lane before entering another
driveway without signaling. He stopped and fled on foot. Officer Nowak caught up with
Berkstresser, who had no valid driver's license or proof of insurance.

The State charged Berkstresser with: (1) fleeing or attempting to elude a police
officer by committing five or more moving violations in violation of K.S.A. 2017 Supp.
8-1568(b)(1)(E), a severity level 9 person felony; (2) in the alternative, fleeing or
attempting to elude a police officer by engaging in reckless driving in violation of K.S.A.
2017 Supp. 8-1568(b)(1)(C), a severity level 9 person felony; (3) marijuana possession in
violation of K.S.A. 2017 Supp. 21-5706(b)(3), a class B nonperson misdemeanor; (4)
driving with a suspended or canceled license in violation of K.S.A. 2017 Supp. 8-
262(a)(1), a class B nonperson misdemeanor; and (5) no proof of insurance in violation

4
of K.S.A. 2017 Supp. 40-3104(c), a class B misdemeanor. He pled not guilty. Before
trial, the State dismissed the marijuana possession count.

The jury returned guilty verdicts on the two alternatively charged felony counts of
fleeing or attempting to elude a police officer, as well as driving with a suspended
license. It acquitted him on the proof-of-insurance charge. The district court sentenced
Berkstresser to 15 months' imprisonment for the reckless driving fleeing and eluding
conviction but did not sentence him for the alternative conviction (five or more moving
violations). The court also sentenced him to six months in jail for the suspended license.
We note the panel states the district court ordered the two sentences run concurrent.
Berkstresser, 2021 WL 6068708, at *3. But our review of the record reflects the district
court ordered these sentences run consecutive.

Berkstresser appealed, raising eight trial-error claims. Of those, the panel
addressed just one that it considered dispositive: Whether the district court committed
clear error by not instructing the jury on the lesser included misdemeanor fleeing offense
for the count alleging reckless driving. The panel held there was error requiring it to
reverse the reckless driving conviction and remanded for a new trial. 2021 WL 6068708,
at *6. Inexplicably, the panel did not discuss the trial-error claims associated with the
jury's remaining alternative felony conviction for five or more moving violations before
remanding the case for a new trial.

The State petitioned for review on the panel's reversal of the conviction. Neither
party sought review for the issues left undecided, so those are not before us. See Kansas
Supreme Court Rule 8.03(b)(6)(C)(ii) (2022 Kan. S. Ct. R. at 56) ("If the petitioner
wishes to have the Supreme Court determine issues that were presented to the district
court and the Court of Appeals but not decided by the Court of Appeals, the petitioner
must also present those issues."); State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021)
5
("Allen did not cross-petition on the panel's decision to drop her third claim, nor did she
mention that claim in her response to the State's petition for review, so it is not before
us.").

We granted the State's petition for review. Jurisdiction is proper. See K.S.A. 20-
3018(b) (providing for petitions for review of Court of Appeals decision); K.S.A. 60-
2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon
petition for review).

DISCUSSION

The State argues two points: (1) a misdemeanor instruction was not factually
appropriate so no error occurred; and (2) even if the instruction was factually appropriate
and should have been given, that omission did not prejudice Berkstresser to the degree
necessary to reverse his felony conviction. As explained, we agree with the State's second
argument.

Was a misdemeanor instruction factually appropriate?

A court reviews alleged instructional error in a sequential manner. See State v.
Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012) (establishing four-step progression
with step 2 considering whether the instruction was legally appropriate and step 3
considering whether the instruction was factually appropriate). The State chose not to
dispute that an instruction for the misdemeanor crime would have been legally
appropriate, so our focus is drawn to factual appropriateness. See Kansas Supreme Court
Rule 8.03(b)(6)(C)(i) (2022 Kan. S. Ct. R. at 56) ("The Supreme Court will not consider
. . . issues not presented or fairly included in the petition for review."); State v. Tracy, 311
Kan. 605, 610, 466 P.3d 434 (2020) ("When a party fails to brief an issue, that issue is
deemed waived or abandoned.").
6
 A legally appropriate lesser included offense instruction must be given when there
is some evidence, viewed in a light most favorable to the defendant, emanating from
whatever source and proffered by whichever party, that would reasonably justify the
defendant's conviction for that lesser included crime. K.S.A. 2021 Supp. 22-3414(3);
State v. Garcia-Garcia, 309 Kan. 801, 820, 441 P.3d 52 (2019); State v. Seba, 305 Kan.
185, 204, 380 P.3d 209 (2016). The State begins by urging us to reconsider this standard's
perspective.

It asserts appellate courts should instead review the evidence in a light most
favorable to the State when the defendant did not request at trial the lesser included
offense instruction in dispute. This shift, it argues, more closely aligns with the clear
error standard required by K.S.A. 2021 Supp. 22-3414(3). It contends criminal
defendants "who fail to request an instruction at trial should not benefit from the 'light
most favorable' standard on appeal; rather, that standard should be limited to defendants
whose request for an instruction was denied by the district court." Said differently, the
State believes viewing the evidence in a light most favorable to the defendant is a
"benefit" even though the defendant has the burden of firmly convincing a reviewing
court the trial's outcome would have been different had this instructional error not
occurred.

But the State faces insurmountable barriers here because it did not ask the panel to
reconsider the perspective it now finds offensive. In fact, the only caselaw the State cited
to the panel as supporting authority for the standard of review was Plummer, which
expressly held "the court should determine whether there was sufficient evidence, viewed
in the light most favorable to the defendant or the requesting party, that would have
supported the instruction." (Emphasis added.) Plummer, 295 Kan. at 163. So when the
panel referenced the Plummer perspective, it was just following the authority the State
7
provided to it. A party cannot be heard to complain when this happens. Cf. State v.
Gulley, 315 Kan. 86, 91, 505 P.3d 354 (2022) ("'Under the invited error doctrine, a
litigant may not invite error and then complain of that same error on appeal.'").

Granted, the State made vague mention of an unrequested instruction's factual
appropriateness being "closely akin" to evidentiary sufficiency questions that are
reviewed in a light most favorable to the State when a jury convicts on a charged crime.
But this meager allusion does not fairly place the question before the panel and equates to
failing to brief the issue. See Tracy, 311 Kan. at 610; Rule 8.03(b)(6)(C)(i). Given these
failings, we decline to reconsider the applicable standard of review and will apply our
existing caselaw. See State v. Roberts, 314 Kan. 835, 844, 503 P.3d 227 (2022) ("To be
factually appropriate, there must be sufficient evidence, viewed in the light most
favorable to the defendant or the requesting party, to support the instruction.").

Moving to the merits, the State argues a misdemeanor conviction must be
supported by evidence showing Berkstresser did not engage in reckless driving during the
police pursuit. It reasons reckless driving is a required statutory element for the felony
charge, so Berkstresser needed to demonstrate a lack of evidence on that felony element
to reasonably justify giving the misdemeanor instruction. Addressing these arguments
requires statutory interpretation for which we have unlimited review. State v. Downing,
311 Kan. 100, 103, 456 P.3d 535 (2020). We start with the statute.

K.S.A. 2021 Supp. 22-3414(3) states in part: "In cases where there is some
evidence which would reasonably justify a conviction of some lesser included crime as
provided in subsection (b) of K.S.A. 21-5109, and amendments thereto, the judge shall
instruct the jury as to the crime charged and any such lesser included crime." K.S.A. 2021
Supp. 21-5109(b) covers lesser included offenses, by providing: "Upon prosecution for a
crime, the defendant may be convicted of either the crime charged or a lesser included
8
crime, but not both." The relevant language here defines a "lesser included crime," as
either "[a] lesser degree of the same crime" or "a crime where all elements of the lesser
crime are identical to some of the elements of the crime charged." K.S.A. 2021 Supp. 21-
5109(b)(1)-(2). And as we have noted, the State concedes the misdemeanor crime
instruction was legally appropriate as the panel held. See Berkstresser, 2021 WL
6068708, at *5.

Keeping this statutory language in mind, we look first at Berkstresser's felony
charge. The district court instructed the jury on felony fleeing by committing reckless
driving under K.S.A. 2017 Supp. 8-1568(b)(1)(C) by itemizing that crime's elements as
follows:

"In Count 2, the defendant is charged with fleeing or attempting to elude a police
officer.

"The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. The defendant was driving a motor vehicle.

"2. The defendant was given a visual or audible signal by a police officer to
bring the motor vehicle to a stop.

"3. The defendant intentionally failed or refused to bring the motor vehicle
to a stop, or otherwise fled or attempted to elude a pursuing police vehicle.

"4. The police officer's vehicle was appropriately marked showing it to be an
official police vehicle.

"5. The defendant engaged in reckless driving.
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 "6. This act occurred on or about the 17th day of February, 2018, in
Sedgwick County, Kansas."

Note the first four elements standing alone constitute misdemeanor fleeing when
the defendant is a first- or second-time offender, and the record shows no prior violation
of K.S.A. 2017 Supp. 8-1568(a) for Berkstresser. But the panel did not confine itself to
those four elements when considering whether evidence supported a misdemeanor
conviction. It instead looked to whether some evidence showed Berkstresser "did not
drive [recklessly]," which is the fifth element that elevates the offense to a felony when
accompanied by the first four. (Emphasis added.) Berkstresser, 2021 WL 6068708, at *6.
This means the panel extended its reasoning beyond deciding whether the evidence
presented could satisfy the misdemeanor offense's statutory elements. The panel erred in
its reasoning, although it still reached the correct conclusion of error as we explain.

Our caselaw applying K.S.A. 2021 Supp. 22-3414(3)'s "some evidence" standard
supports a conclusion that the misdemeanor instruction was factually appropriate here
because the State put on sufficient evidence for the jury to find each element of the lesser
crime. See Roberts, 314 Kan. at 852 (holding courts' duty under K.S.A. 2021 Supp. 22-
3414[3] "applies even if the evidence is weak or inconclusive"; stating, "[p]roviding
lesser included offense instructions allows a jury to consider the full range of possible
verdicts supported by the evidence"). After oral argument, the State filed a motion for
additional briefing seeking to argue this "some evidence" standard requires more, but we
deny the motion because any error in failing to give the lesser instruction—one way or
the other—does not require reversal in this instance.

We hold the record contains ample support to reasonably justify a misdemeanor
conviction under K.S.A. 2017 Supp. 8-1568(a)(1)-(2) and (c)(1)(A). This evidence

10
includes: Berkstresser driving the Mitsubishi, a motor vehicle; Nowak giving a visual
and audible signal to bring the Mitsubishi to a stop by activating the overhead emergency
lights and siren on his patrol car; the video footage depicting Berkstresser intentionally
failed or refused to bring his car to a stop, or otherwise fled or tried to elude a pursuing
police vehicle for about five minutes; and Nowak's car having regular Haysville Police
Department decals.

Despite the panel's flawed reasoning, it correctly held the district court erred in
failing to give a misdemeanor fleeing and eluding instruction. We consider next whether
we are firmly convinced this error prejudiced the trial's outcome.

Was the failure to give a misdemeanor fleeing instruction harmless?

Because Berkstresser did not request an instruction on misdemeanor fleeing, we
review any prejudice resulting from the district court's failure to give the instruction for
clear error. See State v. Owens, 314 Kan. 210, 235, 496 P.3d 902 (2021). This means the
conviction must be affirmed unless the reviewing court is firmly convinced the jury
would have reached a different verdict had the instructional error not occurred. Valdez,
316 Kan. at 6. Berkstresser bears the burden to show this. State v. Solis, 305 Kan. 55, 65,
378 P.3d 532 (2016).

The panel began its prejudice analysis by correctly stating the test. Berkstresser,
2021 WL 6068708, at *6 ("To reverse, we must be firmly convinced the jury would have
reached a different verdict had it been given the option."). But its application went askew.
The panel held the district court committed clear error because "[a] jury could have
reasonably determined Berkstresser failed to yield to the officer but did not drive with a
willful or wanton disregard for the safety of other persons or property as reflected in the
dashcam video." (Emphasis added.) 2021 WL 6068708, at *6. It explained its conclusion

11
by noting: "Nowak's dashcam video showed Berkstresser pass a few vehicles throughout
the pursuit, but the roads were mostly free of traffic. The vehicles Berkstresser did pass
yielded to the police lights and sirens. Berkstresser used turn signals and stopped at stop
signs during the chase." 2021 WL 6068708, at *6.

The panel's holding does not align with the correct test for prejudice. Having
determined the district court should have instructed on the lesser included offense, the
prejudice question is not whether a jury could have reasonably convicted a defendant on a
lesser included offense, but whether the jury would have reached a different verdict on
the felony conviction without the instructional error. Valdez, 316 Kan. at 6. These two
standards are not interchangeable. See How to use "Could," "Would," and "Should," The
Britannica Dictionary, https://www.britannica.com/dictionary/eb/qa/How-to-Use-Could-
Would-and-
Should#:~:text=Just%20remember%20that%20could%20is,I%20hope%20this%20helps
("[C]ould is used to talk about something that can happen, [and] would is used to talk
about something that will happen in an imagined situation."); Garner's Modern American
Usage, p. 869.

Harmless error rules "'serve a very useful purpose insofar as they block setting
aside convictions for small errors or defects that have little, if any, likelihood of having
changed the result of the trial.'" State v. Ward, 292 Kan. 541, 560, 256 P.3d 801 (2011).
And the various, context-dependent standards for prejudice our court applies represent "a
'sliding scale of probabilities,'" each of which "is formulated differently to set a higher or
lower threshold or level of certainty as to whether the error affected the outcome." 292
Kan. at 563-64.

The harmless error scale is finely graduated. Errors implicating a defendant's
rights under the United States Constitution, for example, must be "'harmless beyond a
12
reasonable doubt.'" 292 Kan. at 564. This requires a court holding an error harmless to
conclude there is no "'reasonable possibility'" the error contributed to the verdict. 292
Kan. at 564. On the other hand, a less stringent standard for nonconstitutional errors
requires a court to find only that there is no "reasonable probability" the outcome would
have been different, but for the error. 292 Kan. at 565.

Here, the clear error standard bars a conviction's reversal unless the reviewing
court determines the jury "'would have reached a different verdict.'" Valdez, 316 Kan. at
6. Clear error is "in reality a heightened standard of harmlessness." State v. Carter, 305
Kan. 139, 159, 380 P.3d 189 (2016). So by failing to observe the critical distinction
between what the jury "could have" done and what it "would have" done, the panel's
analysis diluted the applicable test for prejudice and afforded less deference to the jury's
verdict. This was error.

K.S.A. 8-1566(a) provides: "Any person who drives any vehicle in willful or
wanton disregard for the safety of persons or property is guilty of reckless driving." And
the undisputed evidence shows multiple instances of illegal and unsafe driving on
Berkstresser's part while trying to evade police. He drove well over the speed limit; failed
to timely signal his turn even though he stopped at the stop sign; drove across two
residential front yards near multiple parked vehicles and a bystander; failed to stop or
yield when leaving the residential driveway; crossed a fog line and center line; and failed
to signal when turning into a third residential property. While the panel leaned on its
observation that what few moving vehicles Berkstresser passed yielded to police, the
presence of other drivers on the roadway only reinforces the evidence that his conduct
imperiled the safety of those individuals and their vehicles.

13
 Given this record, we are not firmly convinced the jury would have reached a
different verdict by rejecting the State's allegation that Berkstresser drove recklessly
during the pursuit. We affirm his felony conviction.

Remand is required under Vargas.

One issue remains: Whether we must remand the case to the district court to
address the alternative convictions because when a jury returns guilty verdicts on two
alternatively charged counts, a district court must enter only one conviction. See State v.
Vargas, 313 Kan. 866, Syl. ¶¶ 1-3, 492 P.3d 412 (2021). That was not done here.

Recently in Vargas, this court held "[a] district court has no authority to hold one
of two convictions for alternatively charged counts in abeyance," and therefore "[w]hen a
jury returns guilty verdicts on two alternatively charged counts, a district court may enter
only one conviction." 313 Kan. 866, Syl. ¶¶ 1-2. Two convictions for alternatively
charged counts "should merge by operation of law . . . and result in one conviction." 313
Kan. at 873.

Neither party raised the Vargas merger issue, but we directed them to be prepared
to address it at oral argument. This court has the power to sua sponte address a new issue
under certain circumstances. See Kansas Supreme Court Rule 8.03(b)(6)(C)(i) (2022
Kan. S. Ct. R. at 56) (Supreme Court will not consider issues not properly preserved
below but "may address a plain error not presented"); Valdez, 316 Kan. 1, Syl. ¶ 5
("Appellate courts do not ordinarily consider an issue not raised by the parties, but may
do so sua sponte when the issue's consideration is necessary to serve the ends of justice or
prevent the denial of fundamental rights after notice to the parties and allowing them an
opportunity to address the issue raised by the court.").

14
 Consistent with Vargas, we remand this case to the district court with directions to
enter an amended journal entry reflecting Berkstresser's K.S.A. 2017 Supp. 8-1568
convictions merged, making a single conviction for fleeing or attempting to elude an
officer.

Judgment of the Court of Appeals reversing the district court is reversed.
Judgment of the district court is affirmed, and the case is remanded with directions.

***

ROSEN, J., concurring: I agree with the majority's conclusion there was no
reversible instructional error, and I agree with the direction to enter an amended journal
entry reflecting merged convictions. I write separately because I would not have
repudiated the Court of Appeals analytical approach to assessing whether an instruction
on misdemeanor fleeing and eluding was factually appropriate.

The State charged Berkstresser with felony fleeing and eluding. This crime
consists of five elements, including reckless driving. K.S.A. 2017 Supp. 8-1568(b)(1)(C).
The lesser included offense of misdemeanor fleeing and eluding contains identical
elements except it does not require reckless driving. K.S.A. 2017 Supp. 8-1568(a). Per
K.S.A. 2021 Supp. 22-3414(3), it would have been factually appropriate for the district
court to instruct the jury on misdemeanor fleeing and eluding so long as there was "some
evidence which would reasonably justify a conviction of [the] lesser included crime." The
majority interprets this language to require the district court to instruct the jury on a lesser
included crime whenever there is sufficient evidence to support the elements of the lesser
included crime. I interpret this language to require the district court judge to also assess
whether the evidence would "reasonably justify" a jury's rejection of the higher crime in
favor of the lesser crime. In this case, that would amount to a rejection of the reckless
15
driving element. The Court of Appeals undertook this assessment and, in my opinion,
correctly concluded the evidence would reasonably justify a conviction of the lesser
offense because there was plenty of evidence to suggest Berkstresser did not drive
recklessly. Ultimately, however, like the majority of this court, I am not firmly convinced
the jury would have reached a different verdict even if the instruction had been offered.

The majority called the panel's approach error, admonishing it for going beyond a
sufficiency test to assess whether the evidence suggested the jury would have rejected the
reckless driving element of the charged crime. This court explicitly set out the majority's
chosen approach in State v. Haberlein, 296 Kan. 195, 204, 290 P.3d 640 (2012). In
Haberlein, the defendant was charged with first-degree premeditated murder. While there
was overwhelming evidence of premeditation—the only element setting premeditated
murder apart from the lesser count of intentional murder—the majority held an
instruction on intentional murder would have been factually appropriate because "at least
in theory, the jury could have chosen to convict Haberlein of second-degree intentional
murder without having its verdict subject to reversal for insufficient evidence." 296 Kan.
at 204. I wrote separately, because "the test set forth in K.S.A. 22-3414(3) is not a
theoretical one. Instead, it requires the trial judge, who has heard the evidence in the case,
to determine whether there is 'some evidence which would reasonably justify a
conviction.'" 296 Kan. at 214.

I have reiterated my position many times prior to and since Haberlein, and I
maintain it today. See State v. Williams, 308 Kan. 1439, 1463, 430 P.3d 448 (2018); State
v. McLinn, 307 Kan. 307, 350, 409 P.3d 1 (2018); State v. Fisher, 304 Kan. 242, 265, 373
P.3d 781 (2016); State v. Qualls, 297 Kan. 61, 73, 298 P.3d 311 (2013); State v. Tahah,
293 Kan. 267, 280-84, 262 P.3d 1045 (2011); State v. Scaife, 286 Kan. 614, 627-31, 186
P.3d 755 (2008). The factual appropriateness inquiry on jury instruction errors should not
be synonymous with a theoretical sufficiency of the evidence assessment. Such a test
16
requires a district court to instruct a jury on a lesser included offense regardless of how
unbelievable it would be for a jury to reject the higher crime and convict of the lesser.
This conflicts with K.S.A. 2021 Supp. 22-3414(3)'s directive to district courts to offer
instructions on lesser included offenses when the evidence would "reasonably justify" a
jury to convict of a lesser offense. The majority's approach also renders the factual
appropriateness inquiry of our instructional error analysis a nullity in most cases. There
will always be sufficient evidence to support the lesser included offense when all its
elements are included within the charged offense. Otherwise, the case is subject to
dismissal on a motion for acquittal. See K.S.A. 22-3419 (directing court to grant motion
for acquittal at close of State's evidence when there is not sufficient evidence to support
charge).

Because the majority's opinion conflicts with the directive in K.S.A. 2021 Supp.
22-3414(3) and eliminates a mandated role of the trial court judge, I concur in the
judgment only on the instructional error issue.

STEGALL, J., joins the foregoing concurring opinion.

17