State v. Friday (Corrected: August 14, 2013)

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,806

STATE OF KANSAS,
Appellee,

v.

SHANNA R. FRIDAY,
Appellant.


SYLLABUS BY THE COURT

1.
Review of prosecutorial misconduct claims involves a two-step process. The
court first decides whether the comments were outside the wide latitude a prosecutor is
allowed, e.g., in discussing the evidence. If so, there was misconduct. Second, if
misconduct is found, the court must determine whether the improper comments
prejudiced the jury and denied the defendant a fair trial.

2.
The case of State v. Tosh, 278 Kan. 83, 93, 97, 91 P.3d 1204 (2004), identified
three factors to consider in determining if the prosecutorial misconduct so prejudiced the
jury against the defendant that a new trial should be granted: (1) whether the misconduct
was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's
part; and (3) whether the evidence against the defendant was of such a direct and
overwhelming nature that the misconduct would likely have little weight in the minds of
the jurors. Under Tosh, none of these three factors is individually controlling. Before the
third factor can ever override the first two factors, an appellate court must be able to say
that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S.
18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), have been met.
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3.
Where both the constitutional and nonconstitutional error clearly arise from the
very same acts and omissions, an appellate court begins with a harmlessness analysis of
the constitutional error. If the constitutional error is reversible, an appellate court need
not analyze whether the lower standard for harmlessness under K.S.A. 60-261 also has
been met. Under both standards, the party benefiting from the error bears the burden of
demonstrating harmlessness.

4.
A prosecutor may not argue irrelevant evidence regarding the impact of a crime
on a victim or a victim's family.

5.
In closing arguments, a prosecutor may comment on admitted evidence as long as
the remarks accurately reflect the evidence, accurately state the law, and are not intended
to inflame the passions or prejudices of the jury or divert the jury from its duty to decide
the case based on the evidence and the controlling law.

6.
A prosecutor commits misconduct by making an improper comment, even if the
improper comment is made in response to arguments or statements by defense counsel.

7.
In determining whether prosecutorial misconduct was gross and flagrant, among
the things an appellate court considers are whether the comments were repeated,
emphasized improper points, were planned or calculated, or violated well-established or
unequivocal rules.

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8.
In determining whether prosecutorial misconduct was motivated by ill will,
among the things an appellate court considers are whether the conduct was deliberate,
repeated, or in apparent indifference to a court's ruling.

9.
For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

10.
Generally, a defendant is entitled to instructions on the law applicable to his or
her defense theory if there is sufficient evidence for a rational factfinder to find for the
defendant on that theory. If that defendant requests an instruction at trial, the court must
view the evidence in the light most favorable to the defendant.

11.
Mutual combat is a fight both parties enter willingly or voluntarily. It implies a
common intent to fight but not necessarily an exchange of blows.

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12.
The doctrine of self-defense cannot excuse a killing done when the defendant
willingly engaged in mutual combat unless the defendant has withdrawn in good faith
and done everything in the defendant's power to avert the necessity of the killing.

13.
Where a trial objection to a jury instruction is different from the argument
presented on appeal, a clearly erroneous standard of review under K.S.A. 22-3414(3)
applies.

14.
To determine whether an instruction or a failure to give an instruction was clearly
erroneous, the reviewing court must first determine whether there was any error at all.
To make that determination, the appellate court must consider whether the subject
instruction was legally and factually appropriate, employing an unlimited review of the
entire record.

15.
If the reviewing court determines that the district court erred in giving or failing
to give a challenged instruction, then the clearly erroneous analysis moves to a
reversibility inquiry, wherein the court assesses whether it is firmly convinced that the
jury would have reached a different verdict had the instruction error not occurred. The
party claiming a clearly erroneous instruction maintains the burden to establish the
degree of prejudice necessary for reversal.

16.
Giving assistance or encouragement to one who it is known will thereby engage
in conduct dangerous to life is sufficient for accomplice liability as an aider or abettor as
to crimes defined in terms of recklessness or negligence.
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17.
An appellate court reviewing a district court evidentiary ruling applies a multistep
analysis. For the first step, the court determines whether the evidence is relevant. K.S.A.
60-401(b) defines relevant evidence as that which has any tendency in reason to prove
any material fact. Accordingly, relevant evidence must be both probative and material.
Whether evidence is probative is reviewed under an abuse of discretion standard;
materiality is judged under a de novo standard. For the second step, the court determines
which rules of evidence or other legal principles apply. The district court's conclusion is
reviewed de novo. For the third step, the district court must apply the applicable rule or
principle. This application is reviewed either for abuse of discretion or de novo,
depending on the rule or principle being applied. Some rules and principles grant the
district court discretion, while others raise matters of law.

18.
The credibility of an accomplice witness is subject to attack, and great leeway
should be accorded the defense in establishing the witness' subjective reason for
testifying. But the propriety and scope of the examination lies within the sound
discretion of the trial court.

19.
The primary purpose of the Sixth Amendment Confrontation Clause is to give the
accused the opportunity for cross-examination to attack the credibility of the State's
witnesses.

20.
One error cannot support the application of the cumulative error doctrine.

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21.
Whether Kansas' identical offense sentencing doctrine applies is a question of
law, which is reviewed de novo.

22.
Under Kansas' identical offense sentencing doctrine, if two criminal offenses
have identical elements but different penalty classifications, a defendant convicted of
either crime may be sentenced only under the lesser penalty provision.

23.
The generic crime of homicide, of which murder is the highest and most criminal
species, is of various degrees and encompasses every mode by which the life of one
person is taken by the act of another.

24.
Kansas' identical offense sentencing doctrine does not apply to severity levels of
the same offense. Per K.S.A. 21-3107(2)(a), involuntary manslaughter as stated in
K.S.A. 21-3404(b) is a lesser included offense of reckless second-degree murder as set
out in K.S.A. 21-3402(b). Therefore, under the facts of this case, the identical offense
doctrine does not apply.

25.
The use of a defendant's prior criminal convictions as one factor to establish a
presumptive sentence does not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000).

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 6, 2010.
Appeal from Douglas District Court; ROBERT W. FAIRCHILD, judge. Opinion filed August 9, 2013.
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Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Charles E. Branson, district attorney, argued the cause, and Nicole Romine, assistant district
attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

NUSS, C.J.: We granted Shanna Friday's petition for review of the Court of
Appeals decision affirming her conviction and sentence for second-degree unintentional
murder stemming from the beating of Jerry Deshazer. The issues on appeal, and our
accompanying holdings, are as follows:

1. Did the prosecutor commit misconduct during her argument? Yes, but harmless
error.
2. Did the district court err in refusing to instruct the jury on self-defense? No.
3. Did the district court err in instructing the jury on aiding and abetting? No.
4. Did the district court err in excluding specific evidence of a witness' plea
bargain? No.
5. Did cumulative error deny Friday a fair trial? No.
6. Does the identical offense sentencing doctrine require reversing and remanding
for resentencing? No.
7. Did the district court err in including Friday's prior convictions in her criminal
history score without their being proved to a jury beyond a reasonable doubt? No.

We therefore affirm the district court and the Court of Appeals panel.

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FACTS

On February 2, 2008, Deshazer was found dead in a bathtub in his mobile home in
Lawrence. His body was covered in blood, and according to the coroner, his face was
"just bashed in." The coroner determined the cause of death was blunt force injuries to
the head, with additional contributing medical conditions.

The night before Deshazer's death, he got together at his home with Jerod
Buffalohead, Jarvis Jones, and defendant Friday. Buffalohead and Jones arrived around
4:30 p.m., and Friday arrived around 5 p.m. All four drank alcohol together throughout
the evening. Shortly after arriving, Buffalohead left and returned around 8:45 p.m.

At one point, Friday got into a verbal altercation with Deshazer. Their argument
never became physical, and they eventually cooled down.

Shortly after Buffalohead returned to Deshazer's home, a physical altercation
began. Buffalohead, Friday, and Jones each offered different versions of the episode that
resulted in Deshazer's death.

Jerod Buffalohead

According to Buffalohead's testimony for the defense, he heard arguing when he
returned to the mobile home around 8:45 p.m. Somebody told Buffalohead that he owed
Deshazer money, so Buffalohead offered to pay Deshazer. But Deshazer said
Buffalohead did not owe him anything. While Buffalohead was getting ice, "a fight
started" between Friday and Deshazer. Buffalohead testified:

"I'm not real sure how the fight started, but I heard a slap, I heard a thud on the ground
and—
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. . . .
" . . . [w]hen I heard all that, I turned around and Jerry [Deshazer is] on, is on, not
on top of her—I don't know if they fell, I don't know—
. . . .
". . . I don't know if they tripped, but I pulled [Deshazer] off of [Friday]."

After Buffalohead pulled Deshazer from Friday, he sat Deshazer in a chair and
Friday momentarily left the room. When she returned, she again argued with Deshazer.
According to Buffalohead, "Jerry had a small bottle and I think that was plastic, but he
threw it and it was, it landed in between 'em or he threw it on the ground."

After Deshazer threw the bottle, Friday slapped him and they started fist fighting.
Buffalohead then separated them. Jones also intervened and began hitting Deshazer.
Buffalohead cussed at Jones for hitting Deshazer. Friday then hit Deshazer in the face
with a bottle. According to Buffalohead, he tried to grab the bottle, but it shattered on
Deshazer's head.

Jones continued to punch Deshazer's face until Buffalohead pulled him away.
When Deshazer then stood up from his chair and started to go after Jones, Buffalohead
threw a blanket over Deshazer to calm him down. Deshazer tripped over the blanket; then
Buffalohead and Jones picked him up and put him back in his chair. After Buffalohead
asked Friday if she had called for help, he left to go to his parents' house.

Shanna Friday

According to Friday's statements to police, at some point in the evening
Buffalohead became angry at how Deshazer was treating Friday. So Buffalohead and
Jones began beating Deshazer while he was sitting in a chair. They eventually threw a
blanket over his head. Friday then punched Deshazer three times in the face, with
Buffalohead and Jones moving out of her way. During the beating, Deshazer "fought with
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his mouth" by "talking shit." According to Friday, Jones hit Deshazer with an ashtray, but
she repeatedly denied anybody hit Deshazer with a bottle.

After the physical altercation ended, Friday gave Deshazer water, some pills, and a
blanket. She also tried to wipe him off. When she offered to call the police or an
ambulance, he declined. Friday then lay on the couch and fell asleep. She awoke in the
middle of the night and noticed Deshazer stumbling from one end of the home to the
other. She also saw excrement. Friday apparently went back to sleep and left around 8
a.m. Before she left, Friday asked Deshazer if he was doing OK and if he wanted her to
call the police or an ambulance. Deshazer responded from the bathroom that he was OK
and did not want Friday to call anyone for help.

Jarvis Jones

According to Jones' testimony for the State, before Buffalohead returned to the
home Deshazer said that Buffalohead owed him money. Friday then encouraged
Deshazer to tell Buffalohead this when he came back. Buffalohead then walked in and
asked, "Tell me what?" So Friday told Buffalohead that Deshazer thought Buffalohead
owed him money. Buffalohead then stood over Deshazer, and Deshazer "let the matter
go."

Jones had little recollection of the remaining events because he testified he was
drunk and had blacked out from the alcohol. The next thing Jones remembered was
people yelling. He saw Buffalohead hit Deshazer five or six times while Deshazer was
seated in a chair. While Buffalohead was the only person Jones saw hit Deshazer, Friday
was egging Buffalohead on by saying, "That's what you get, that's what you get."
Buffalohead then threw a blanket or rug over Deshazer's head.

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Jones soon passed out again. When he awoke at 2:30 a.m., Jones saw Deshazer
moaning in his chair with his head back. Deshazer's face and chest area were bloody.
Jones then saw Deshazer "slump" out of his chair and crawl to his bedroom. Jones left,
intending to return to his own home, but he ended up drinking with Deshazer's neighbor.
At dawn, Jones left the neighbor's home and returned to Deshazer's where he fell asleep
in a back bedroom.

Finding the body and the police investigation

Later that morning Jim Vincent arrived at Deshazer's home. Vincent could not find
Deshazer and left. He returned an hour later and asked Nancy Kelch to look for Deshazer.
Kelch found him dead in his bathroom.

When police arrived, they found broken glass—including the neck of a whiskey
bottle covered in blood and a broken ashtray—in Deshazer's home. DNA on the broken
ashtray and on the neck of the broken bottle matched Deshazer, while DNA on the bottle
mouth matched Buffalohead. The police also found several items covered in blood,
including a comforter and pillow. They further noticed a vast amount of blood, including
significant amounts on Deshazer's recliner, on his floor, and in his bathroom.

The next day police found bloody clothes in a trash can outside of Friday's
residence. Friday admitted the clothes belonged to her, including a jacket, a pair of shoes,
athletic pants, a T-shirt, a pair of socks, and women's underwear. DNA on the bloody
jacket matched Deshazer. Friday agreed to accompany police to their station where she
was read her Miranda rights and questioned.

The State eventually charged Friday with one count of unintentional reckless
second-degree murder in violation of K.S.A. 21-3402(b). At trial, in addition to
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presenting Jones' testimony, the State played a video recording of Friday's interview with
the police.

The jury convicted Friday of the charge. This offense is a severity level 2 person
felony, and the district court sentenced her to 174 months' incarceration. The Court of
Appeals affirmed in State v. Friday, No. 101,806, 2010 WL 3211703 (Kan. App. 2010)
(unpublished opinion), and we granted Friday's petition for review under K.S.A. 20-3018.

Additional facts will be provided as necessary to the analysis.

ANALYSIS

Issue 1: The prosecutor did not commit reversible error.

Friday argues the prosecutor committed misconduct in her closing argument and
the error is reversible. The State concedes the conduct was questionable but argues the
error was harmless.

Standard of review
We have said that review of prosecutorial misconduct claims involves a two-step
process. The court first decides whether the comments were outside the wide latitude a
prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct.
Second, if misconduct is found, we have said that the court must determine whether the
improper comments prejudiced the jury and denied the defendant a fair trial. State v.
Marshall, 294 Kan. 850, 856, 281 P.3d 1112 (2012).

For years we have considered several factors in analyzing this second step: (1)
whether the misconduct was gross and flagrant; (2) whether it was motivated by
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prosecutorial ill will; and (3) whether the evidence was of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of jurors. None of these three factors has been individually controlling. Marshall, 294
Kan. at 857. (Citations omitted.)

Since 2004, this court has also demanded that any prosecutorial misconduct error
meet the "dual standard" of both constitutional harmlessness and statutory harmlessness
to uphold a conviction. See State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004) (Before
the third factor can ever override the first two factors, an appellate court must be able to
say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386
U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), have been met.).

Under the constitutional harmless error analysis defined in Chapman,

"the error may be declared harmless where the party benefitting from the error proves
beyond a reasonable doubt that the error complained of will not or did not affect the
outcome of the trial in light of the entire record, i.e., where there is no reasonable
possibility that the error contributed to the verdict." State v. Ward, 292 Kan. 541, Syl. ¶
6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

Under the harmless error analysis defined in K.S.A. 60-261, the test is
equally clear. The court "determine[s] if there is a reasonable probability that the
error did or will affect the outcome of the trial in light of the entire record." 292
Kan. 541, Syl. ¶ 6.

Under both standards, the party benefiting from the error—here, allegedly the
State—bears the burden of demonstrating harmlessness. State v. Herbel, 296 Kan. 1101,
1110, 299 P.3d 292 (2013). That burden is higher when the error is of constitutional
magnitude. See Herbel, 296 Kan. at 1110 ("Clearly, the party benefiting from the
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constitutional error must meet a higher standard to show harmlessness than the standard
required in nonconstitutional error.").

Discussion

The prosecutor's statement in rebuttal closing argument about which Friday
complains asked the jury to give Deshazer his dignity back.

"Murder takes away a lot of things. The obvious, it takes a life. It takes a father
from his children, it takes a brother from a brother. It takes a grandfather from
grandchildren, but it takes a whole lot more, and in this case it took away Jerry
Deshazer's dignity. He has been called in this courtroom any number of things, without
the ability to defend himself. He has been called a mean drunk; he has been called an old
man; he has been called an obnoxious mouthy alcoholic.

"And then if it's not, if wasn't bad enough, you have the total loss of dignity in the
way he was found. A house that he obviously keeps very neat, covered with his own
blood, with his own fecal matter. All of the neat things that he had knocked over as he
stumbled bleeding through that house, and then ultimately having to have you, on this big
screen in this courtroom, a picture of him in the bathroom with his pants pulled down and
almost exposing his genitals. Blood all over his face, his face swollen. You wouldn't even
know what he looked like before this. Because that wasn't Jerry Deshazer in that tub, not
the one that everyone knew. And what can happen here in this courtroom? A verdict of
guilty can return to that man the dignity he lost on February 1st." (Emphasis added.)

Friday contends the argument diverted the jury from its duty to decide the case
based on the evidence and the controlling law, attacked her exercise of her right to trial,
and was meant only to inflame the passions of the jury. The State responds the comment
rebutted defense counsel's statements during closing argument but orally conceded to us
that the comments were "questionable."

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Under the first step of our analysis we decide whether the comments were outside
the wide latitude a prosecutor is allowed, e.g., in discussing the evidence. And we do not
allow a prosecutor to comment on irrelevant facts regarding the impact of a crime on the
victim or the victim's family. State v. Stano, 284 Kan. 126, 150, 159 P.3d 931 (2007).
Here, the prosecutor used evidence, including the irrelevant fact that Deshazer kept his
home neat and clean, and tied it directly to the impact of the crime on Deshazer.
Additionally, the prosecutor asked the jury to return Deshazer's dignity with a guilty
verdict.

This conduct diverted the jury from its "'duty to decide the case based on the
evidence and the controlling law.'" State v. Raskie, 293 Kan. 906, 917, 269 P.3d 1268
(quoting Tosh, 278 Kan. at 90). As the Court of Appeals panel accurately stated: "[T]he
relevant impact on Deshazer under the applicable law was the loss of his life, not the loss
of his dignity." Friday, 2010 WL 3211703, at *5. We find prosecutorial misconduct.

We acknowledge, as did the panel, that some of the comments were probably in
response to defense counsel's closing arguments that Deshazer was "a very mean drunk"
and "a mean drunk" who "kept" and "enjoyed" the company of "crack addicts." Friday,
2010 WL 3211703, at *4. But as we clarified in Marshall, a facially improper comment
by a prosecutor responding to defense counsel's argument is but one factor to consider in
the overall calculus; it no longer absolutely rinses off possible misconduct. 294 Kan. at
860 ("The open-the-door rule does not insulate a prosecutor from a finding of
misconduct.").

With the prosecutorial misconduct established, we turn to the second analytical
step. See Marshall, 294 Kan. at 857. This includes determining whether the prosecutor's
improper comments were harmless error under the standards of both K.S.A. 60-261 and
Chapman, 386 U.S. 18.

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We recently held that when the constitutional and nonconstitutional error clearly
arises from the very same acts and omissions, we logically begin with our harmlessness
analysis of the constitutional error. See Herbel, 296 Kan. at 1111. We reach this
conclusion because if we decide the constitutional error is not harmless and reverse the
convictions, there is no point in analyzing whether the State met the lower standard for
harmlessness under K.S.A. 60-261. Herbel, 296 Kan. at 1111.

In turning to our constitutional error analysis, we review the factors upon which
Friday relies to argue reversal and remand to the district court. Per Tosh, these are gross
and flagrant conduct and prosecutorial ill will. See 278 Kan. at 93.

In determining whether prosecutorial misconduct was gross and flagrant, among
the things we have considered are whether the comments were repeated, emphasized
improper points, were planned or calculated, or violated well-established or unequivocal
rules. See, e.g., State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012). In determining
whether prosecutorial misconduct was motivated by ill will, among the things we have
considered are whether the conduct was deliberate or in apparent indifference to a court's
ruling. See, e.g., Marshall, 294 Kan. at 862; see also Gershman, Prosecutorial
Misconduct § 14.5, pp. 602-03 (2d ed. 2012) ("'Other factors considered by courts in
determining harmfulness are whether the prosecutor's misconduct was deliberate, related
to a crucial issue in the trial, or was followed by a prosecutorial apology.'"); cf.
Prosecutorial Misconduct § 10:51, p. 458 (a prosecutor's failure to obey court rulings
increases the likelihood of reversal). As with determining gross and flagrant conduct, for
determining ill will this court has also considered whether the conduct was repeated.
Marshall, 294 Kan. at 862.

Based on these standards, we agree with the Court of Appeals panel that the
prosecutor's comments were not gross or flagrant nor motivated by ill will. The
comments constituted 1 page of about 30 total pages of closing argument by the State.
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We also recognize the prosecutor was, at least in part, attempting to rehabilitate
Deshazer's reputation after defense counsel attacked it in closing argument. See Marshall,
294 Kan. at 860-61.

In continuing our constitutional harmlessness analysis, we address the State's
argument that there is no reasonable possibility the misconduct contributed to the
verdict. See Ward, 292 Kan. 541, Syl. ¶ 6. More specifically, as the panel recognized,
the evidence supporting Friday's conviction is also strong. "Under every version of
events, including defendant's, she was involved in the altercation that led to Deshazer's
death, either assaulting Deshazer or encouraging others as they did so." Friday, 2010
WL 3211703, at *5. So considering the overall standard of review for determining the
magnitude of constitutional error as stated earlier, we conclude the prosecutorial
misconduct was harmless error. Ward, 292 Kan. 541, Syl. ¶ 6. Given this holding, we
need not determine whether the State has met its burden of showing harmless error
under the lower standard articulated in K.S.A. 60-261. See Herbel, 296 Kan. at 1111.

Issue 2: The district court correctly refused to instruct the jury on self-defense.

Friday argues that the district court should have granted her request to instruct the
jury on self-defense. Primarily through Buffalohead's testimony, she contends she
presented sufficient evidence to warrant such an instruction. The State essentially
responds that Buffalohead's testimony did not support self-defense because it showed
Friday, not Deshazer, as the one who actually initiated the attack that resulted in
Deshazer's death.

The trial judge held there was insufficient evidence: "I don't think we can argue
that anybody believed she was in imminent danger." And the Court of Appeals panel
essentially agreed, concluding Friday was at least a coaggressor in mutual combat and
that the evidence failed to demonstrate she had a subjective belief her use of such deadly
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force was necessary to defend herself from an imminent use of force by Deshazer. We
agree no self-defense instruction was warranted.

Standard of review

In analyzing a preserved jury instruction issue on appeal, we implement a stair-
step process. As we recently explained in State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283
P.3d 202 (2012):

"For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)."

There is no dispute the self-defense instruction issue was appropriately raised and
preserved for appellate review. We jointly consider whether the instruction was legally
appropriate and, if so, whether the evidence would support giving it.

Discussion

Generally, a defendant is entitled to instructions on the law applicable to his or her
defense theory if there is sufficient evidence for a rational factfinder to find for the
defendant on that theory. State v. McCullough, 293 Kan. 970, 974, 270 P.3d 1142 (2012)
(self-defense). And if that defendant requests an instruction at trial, the court must view
19

the evidence in the light most favorable to the defendant. State v. Anderson, 287 Kan.
325, 334, 197 P.3d 409 (2008).

Continuing with Plummer steps two and three, particularly determining whether
the instruction was legally appropriate, we acknowledge that the elements to establish the
right to use deadly force in self-defense are codified at K.S.A. 21-3211. That statute
states:

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

"(b) A person is justified in the use of deadly force under circumstances
described in subsection (a) if such person reasonably believes deadly force is necessary to
prevent imminent death or great bodily harm to such person or a third person."

We have recognized that K.S.A. 21-3211 sets out a two-part test.

"The first is subjective and requires a showing that [Friday] sincerely and
honestly believed it was necessary to kill to defend herself or others. The second prong is
an objective standard and requires a showing that a reasonable person in [Friday's]
circumstances would have perceived the use of deadly force in self-defense as necessary.
[Citation omitted.] " (Emphasis added.) McCullough, 293 Kan. at 975.

For Friday's contention that Buffalohead's testimony supports giving the
instruction, she points out he stated:

"I'm not real sure how the fight started, but I heard a slap, I heard a thud on the ground
and—
. . . .
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". . . [w]hen I heard all that, I turned around and [Deshazer is] on, is on, not on
top of her—I don't know if they fell, I don't know—
. . . .
" . . . I don't know if they tripped, but I pulled [Deshazer] off of [Friday]."
(Emphasis added.)

Buffalohead further testified that after they sat Deshazer in a chair, Friday left the
room. After this break in the action, Friday reentered the room and began to argue with
Deshazer again. Buffalohead testified Deshazer had a small bottle that he threw and it
landed in between them "or he threw it on the ground." Friday soon slapped Deshazer,
and a fist fight ensued. Buffalohead then got between them again, causing yet another
break in the action. But as the State points out, per Buffalohead's testimony, Friday
resumed the fight by breaking a bottle over Deshazer's head.

We agree with the Court of Appeals panel that Friday was at least a coaggressor
in mutual combat. As we have explained:

"The doctrine of self-defense cannot excuse a killing done when the defendant
willingly engaged in mutual combat unless the defendant has withdrawn in good faith
and done everything in the defendant's power to avert the necessity of the killing. [State
v. Barnes, 263 Kan. 249, 266, 948 P.2d 627 (1997)]. This rule does not destroy the right
to self-defense in all mutual combat cases; but for self-defense to justify the killing, the
defendant must be acting 'solely for the protection of [the defendant's] own life, and not
to inflict harm upon [the defendant's] adversary.' State v. Burgess, 245 Kan. 481, 487,
781 P.2d 694 (1989) (quoting 40 Am. Jur. 2d, Homicide § 142)." (Emphasis added.)
McCullough, 293 Kan. at 975-76.

This court has defined mutual combat as "'[o]ne into which both the parties enter
willingly or voluntarily; it implies a common intent to fight, but not necessarily an
exchange of blows.'" State v. Coop, 223 Kan. 302, 306, 573 P.2d 1017 (1978) (quoting
21

Black's Law Dictionary 332-33 [Rev. 4th ed. 1968]). And we have held that it does not
matter who initiated the confrontation when both parties willingly engaged in it:

"If the parties fought by mutual consent the circumstances of who committed the
first act of violence was immaterial; and, so long as each combatant persisted in his
original determination to vanquish his antagonist the aggressions were mutual. A
resistance which has for its real object the securing of an opportunity to mangle the
assailant is not legal self-defense." McNeil v. Mullin, 70 Kan. 634, 637, 79 P. 168 (1905).

When the evidence is viewed in the light most favorable to Friday, not only does it
clearly reveal that she and Deshazer engaged in mutual combat but also that she failed to
withdraw in good faith and do everything in her power to avoid killing Deshazer.
McCullough, 293 Kan. at 976. Simply put, Friday stayed in the house during breaks in the
action and then resumed her participation.

We further agree with the district court's refusal to instruct, and the panel's
affirmation of that refusal, because of a lack of imminent danger to Friday. As the panel
pointed out, she never expressed a need to defend herself against Deshazer. And when
Buffalohead and Jones were beating Deshazer in the final confrontation, they deliberately
stepped back so that Friday could punch him in the face three times. Friday later told the
police Deshazer was not fighting back at that time—he was only "talking shit." We easily
conclude there is no evidence showing that Friday had a sincere and honest subjective
belief that her use of such force was necessary to defend herself from imminent death or
great bodily harm by Deshazer, and there is no evidence showing a reasonable person in
her position would have believed so either. See McCullough, 293 Kan. at 975.

Accordingly, the district court correctly denied Friday's request for the self-
defense instruction as being factually inappropriate on this record.

22

Issue 3: The district court correctly instructed the jury on aiding and abetting.

At trial, Friday objected to the aiding and abetting instruction because she alleged
insufficient evidence justified giving it. The trial court overruled her objection. Friday
now changes her argument to contend the instruction was erroneously given because it is
a logical impossibility to aid a person with the intent to further an unintentional crime.
The State briefly responds that State v. Garza, 259 Kan. 826, 916 P.2d 9 (1996), controls,
and its holding was correctly applied by the Court of Appeals to affirm the district court
ruling on this alternative basis. We agree the instruction was warranted.

Standard of review

We start by acknowledging that "[w]here a trial objection to a jury instruction is
different from the argument presented on appeal, a clearly erroneous standard of review
applies." State v. Ellmaker, 289 Kan. 1132, Syl. ¶ 1, 221 P.3d 1105 (2009); see K.S.A.
22-3414(3) (A party must object before the jury retires to consider its verdict, "stating
distinctly the matter to which the party objects and the grounds of the objection unless the
instruction or the failure to give an instruction is clearly erroneous.").

We refined our "clearly erroneous" standard of review framework in State v.
Williams, 295 Kan. 506, Syl. ¶¶ 4-5, 286 P.3d 195 (2012):

"To determine whether an instruction or a failure to give an instruction was
clearly erroneous, the reviewing court must first determine whether there was any error at
all. To make that determination, the appellate court must consider whether the subject
instruction was legally and factually appropriate, employing an unlimited review of the
entire record."

"If the reviewing court determines that the district court erred in giving or failing
to give a challenged instruction, then the clearly erroneous analysis moves to a
23

reversibility inquiry, wherein the court assesses whether it is firmly convinced that the
jury would have reached a different verdict had the instruction error not occurred. The
party claiming a clearly erroneous instruction maintains the burden to establish the degree
of prejudice necessary for reversal."

Discussion

The aiding and abetting statute in effect at the time of Deshazer's beating, K.S.A.
21-3205(1), provided that "[a] person is criminally responsible for a crime committed by
another if such person intentionally aids, abets, advises, hires, counsels or procures the
other to commit the crime." Friday particularly contends that aiding and abetting is a
specific intent crime; it cannot be applied to reckless second-degree murder because it is
logically impossible to aid and abet a reckless act. Cf. State v. Engelhardt, 280 Kan. 113,
132, 119 P.3d 1148 (2005) ("[A] person guilty of aiding and abetting a premeditated first-
degree murder must be found, beyond a reasonable doubt, to have had the requisite
premeditation to murder the victim."). So Friday basically argues the instruction was
legally inappropriate. See Williams, 295 Kan. 506, Syl. ¶ 6.

Friday admits—as the State argues—that in Garza, 259 Kan. 834-35, we
specifically held that a person could be held liable for aiding and abetting a reckless
crime. In Garza, "bad blood" existed between Garza and a man named Vaca. After
meeting outside a store, the two men obtained guns and started shooting at each other.
Jennifer Minton stood behind Garza and was struck by one of Vaca's bullets. Although it
was a Vaca bullet that hit Minton, Garza was later charged with the aggravated battery of
Minton. After finding Garza had not fired the shot that hit Minton, the district court
dismissed the complaint.

We reversed. After reviewing caselaw from other jurisdictions, we recognized that
"'two persons act in concert when "one . . . engages in conduct" and the other
24

intentionally aids him [or her] in that conduct.'" Garza, 259 Kan. at 832. We
acknowledged that "the law also provides that individuals may act together in the
commission of a crime based upon their depraved, indifferent, or reckless conduct." 259
Kan. at 834. We ultimately held that "[g]iving assistance or encouragement to one who it
is known will thereby engage in conduct dangerous to life is sufficient for accomplice
liability as an aider or abettor as to crimes defined in terms of recklessness or
negligence." 259 Kan. 826, Syl. ¶ 6. The Garza court noted that while the two shooters
had cross-purposes in shooting at each other, they were both acting in concert as to
bystanders because the probable consequences were reasonably foreseeable. So the
Garza court held that the district court incorrectly dismissed the complaint.

Per Garza, Friday unquestionably aided and abetted Deshazer's fellow attackers.
She admitted punching Deshazer in the face several times. Buffalohead testified that
Friday hit Deshazer over the head with a bottle, while Jones testified that Friday was
encouraging Buffalohead to strike Deshazer. We agree with the Court of Appeals panel
that Friday participated in the beating of Deshazer or at least encouraged Buffalohead and
Jones in their beating of him, ultimately leading to his death. Friday, 2010 WL 3211703,
at *8. In short, we conclude Friday was giving assistance or encouragement to others who
were engaging "in conduct dangerous to life . . . as to crimes defined in terms of
recklessness or negligence." See Garza, 259 Kan. at 835.

But Friday asks this court to reject Garza as wrongly decided and to instead adopt
the reasoning in State v. Shannon, 258 Kan. 425, 905 P.2d 649 (1995). There, the
defendant was convicted of first-degree murder and aggravated assault. The Shannon
court held that he was not entitled to instructions on the lesser included offenses of
attempted second-degree murder, attempted voluntary manslaughter, and attempted
involuntary manslaughter. The court determined that the attempt statute requires a person
to possess the specific intent to commit a crime. So it concluded that because second-
degree murder under K.S.A. 21-3402(b) requires an unintentional killing, it would be a
25

logical impossibility for a person to specifically intend to commit an unintentional crime.
258 Kan. at 428-29.

Friday argues that the Shannon rationale—a person cannot specifically intend to
commit an unintentional crime—should apply to her situation because, like attempt,
aiding and abetting is a specific intent crime. See State v. Becker, 290 Kan. 842, 852, 235
P.3d 424 (2010). We disagree with her reasoning.

At the time of Friday's offense, the aiding and abetting statute provided that a
person "is criminally responsible for a crime committed by another if such person
intentionally aids, abets, advises, hires, counsels or procures the other to commit the
crime." K.S.A. 21-3205(1). Under this statute, obviously the aider or abettor must
intentionally assist the principal. And it is true we have recognized that for an aider to
assist a principal in carrying out a specific intent crime, the aider must possess the "same
specific intent to commit the crime as the principal." See Becker, 290 Kan. at 852 (citing
State v. Overstreet, 288 Kan. 1, 13, 200 P.3d 427 [2009]). But the underlying crime in
this case—reckless second-degree murder—simply is not a specific intent offense.

We therefore conclude the aiding and abetting jury instruction was both factually
and legally appropriate, and the district court did not err in giving it. See Williams, 295
Kan. 506, Syl. ¶¶ 4-5.

Issue 4: The district court did not err when it excluded specifics of Buffalohead's plea
bargain.

Friday argues that the district court erroneously excluded certain information
about Buffalohead's plea bargain. Friday was allowed to ask Buffalohead whether he had
entered a plea as a result of the attack on Deshazer but was prevented from asking any
specifics about the charge to which he pled. She contends this improperly limited her
ability to thoroughly cross-examine a witness and also violated her right of confrontation.
26


The State counters that the district court did not abuse its discretion in excluding
the evidence. It also argues there is no Confrontation Clause issue because Buffalohead
was Friday's own witness, not the State's. The Court of Appeals agreed with the State.
We agree the evidence was properly excluded.

Standard of review

We begin by recognizing that when reviewing a district court decision to admit or
exclude evidence, we use a multistep analysis. State v. Shadden, 290 Kan. 803, 817, 235
P.3d 436 (2010). For the first step, we determine whether the evidence is relevant.
Evidence is relevant when it has "any tendency in reason to prove any material fact."
K.S.A. 60-401(b). Accordingly, relevant evidence must be both probative and material.
State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010) (citing State v. Dixon, 289
Kan. 46, 69, 209 P.3d 675 [2009]).

Whether evidence is probative is reviewed under an abuse of discretion standard;
materiality is judged under a de novo standard. Shadden, 290 Kan. at 817 (citing State v.
Reid, 286 Kan. 494, 507-09, 186 P.3d 713 [2008]).

For the second step, we determine which rules of evidence or other legal principles
apply. The district court's conclusion is reviewed de novo. Shadden, 290 Kan. at 817. For
the third step, the district court must apply the applicable rule or principle. This
application is reviewed either for abuse of discretion or de novo, depending on the rule or
principle being applied. Some rules and principles grant the district court discretion,
while others raise matters of law. 290 Kan. at 817.

Here, we are asked to review the exclusion of certain details of Buffalohead's plea
bargain, which is generally reviewed for abuse of discretion. See State v. Sharp, 289 Kan.
27

72, 97, 210 P.3d 590 (2009) (it lies within the sound discretion of the trial court to
determine the propriety and scope of the defense's examination of an accomplice).
Whether the evidence's probative value outweighs the potential for undue prejudice is
also generally reviewed for abuse of discretion. Reid, 286 Kan. at 512 (citing State v.
Garcia, 285 Kan. 1, 18, 169 P.3d 1069 [2007]). The party who asserts abuse of discretion
bears the burden of showing it. Reid, 286 Kan. at 512.

To the extent the district court's evidentiary exclusion infringed upon a defendant's
constitutional right to confront witnesses—as Friday alleges—we exercise de novo
review. See State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) ("[W]hile we have
said that the admissibility of evidence is often within the discretion of the district judge,
constitutional considerations still prevail. [Citation omitted.]").

Discussion

Before opening statements, the State moved to prevent the defense from
discussing the specifics of Buffalohead's plea bargain. The prosecutor stated:

"The defense is planning on calling Jerod Buffalohead, the codefendant, who the Court is
well aware has [pled] and been sentenced. Our objection would be getting into the fact
that he—I don't know if he wants to get into that he [pled], but I don't think getting into
what he [pled] to is proper. It's going to be prejudicial because it shows a different
charge than what [Friday is] charged with. We can't get into the fact that she was made
the same plea offer, and actually was even made a better plea offer than Jerod
Buffalohead was made, and we can't do that, so I don't think it's fair to get into what it is
that he [pled] to. It's prejudicial to the State. That's basically our request." (Emphasis
added.)

The district court noted that Buffalohead was being called by the defense and not
the State. So it concluded that any information about the charge to which Buffalohead
28

pled was not relevant or, if so, its relevance was outweighed by the prejudice to the State.
The court elaborated on this limitation by telling Friday, "[Y]ou can ask him if he pled to
a crime as a result of this offense," but prohibited the defense from discussing the
elements. When the defense asked Buffalohead on direct examination if he had pled "as a
result of this case," Buffalohead responded affirmatively.

At the outset, like the Court of Appeals panel we reject Friday's request for de
novo review. Friday called Buffalohead as her witness and does not explain how his
testifying on her behalf implicated her right to confrontation and entitled her to de novo
review. For as we have held: "The primary purpose of the Confrontation Clause is to give
the accused the opportunity for cross-examination to attack the credibility of the State's
witnesses." (Emphasis added.) State v. Humphrey, 252 Kan. 6, 21, 845 P.2d 592 (1992).

And like the panel, when applying the abuse of discretion standard to the district
court's evidentiary ruling, we hold there was no abuse. Generally, when the State calls an
accomplice as a witness, the defendant is allowed to cross-examine about the plea
agreement to help the jury understand the witness' potential motivations for testifying.
But we allow the district court to limit the inquiries. See Sharp, 289 Kan. at 97-100
(citing cases).

Because Buffalohead was not the State's witness, but Friday's, any defense
concern that the jury receive adequate information about his potential motivations for
testifying is greatly diluted, if not eliminated. Friday simply does not explain how the
specifics of Buffalohead's pleading "as a result of this case" are probative of his
credibility as her own witness. See State v. Richmond, 289 Kan. 419, 437, 212 P.3d 165
(2009) (probative evidence requires a logical connection between the asserted facts and
the inferences they are intended to establish).

29

We hold Friday has not met her burden of showing the district court abused its
discretion in disallowing her inquiry into the details of Buffalohead's plea bargain.

Issue 5: The cumulative error doctrine does not apply to a single trial error.

Friday argues that even if no single error at trial is sufficient to require reversal
and remand, the cumulative effect of errors nevertheless deprived her of a fair trial. But
the only error was in the prosecutor's closing argument, which we determined was
harmless. We agree with the State and the Court of Appeals panel that without more error
to accumulate, the error remains harmless. See State v. Houston, 289 Kan. 252, 277, 213
P.3d 728 (2009) (The presence of one trial error is insufficient to accumulate.).

Issue 6: The identical offense sentencing doctrine does not apply because involuntary
manslaughter is a lesser included offense of reckless second-degree murder.

Friday next argues that instead of being sentenced for reckless second-degree
murder under K.S.A. 21-3402(b), a severity level 2 person felony, she should have been
sentenced for involuntary manslaughter under K.S.A. 21-3404(b), a severity level 5
person felony. More specifically, she argues that the two offenses contain identical
elements and per the identical offense sentencing doctrine she must be resentenced for
the lesser offense. Under this doctrine, if two criminal offenses have identical elements
but different penalty classifications, a defendant convicted of either crime may be
sentenced only under the lesser penalty provision. State v. Thompson, 287 Kan. 238, 258-
59, 200 P.3d 22 (2009). The State responds that the doctrine is inapplicable to Friday. See
State v. Sandberg, 290 Kan. 980, 235 P.3d 476 (2010).

30

Standard of Review

Whether Kansas' identical offense sentencing doctrine applies is a question of law
to which we apply de novo review. Sandberg, 290 Kan. at 984.

Discussion

After the Court of Appeals panel released its decision in Friday, we rejected this
identical argument in State v. Bridges, No. 101,222, 297 Kan. ___, Syl. ¶ 27 (this day
decided). There, we reinforced our prior holding that the identical offense doctrine does
not apply to mere severity levels of the same offense. Bridges, slip op. at 39 (citing
Sandberg, 290 Kan. at 988). And involuntary manslaughter is simply one of four degrees
of homicide. See State v. Cheever, 295 Kan. 229, 258, 284 P.3d 1007 (2012) ("[O]ur
caselaw has recognized the following homicide degree crimes, in descending order: first-
degree murder, second-degree murder, voluntary manslaughter, and involuntary
manslaughter."). As we observed in Bridges:

"'Thus, in [State v.] Gregory[, 218 Kan. 180, 182-83, 542 P.2d 1051 (1975)], we held that
involuntary manslaughter is a lesser degree of second-degree murder and is therefore a
lesser included crime under K.S.A. 21-3107(2)(a). We explained that while it appears
murder and manslaughter are different crimes, '"they involve but one crime and are only
degrees of felonious homicide."' 218 Kan. at 183 (quoting Warren on Homicide § 83, pp.
415-16).'" Bridges, slip op at 41 (quoting Cheever, 295 Kan. at 258).

Based upon Cheever and its citation to Gregory, we concluded in Bridges, slip op.
at 41-42, that involuntary manslaughter as set out in subsection (b) of K.S.A. 21-3404 is
likewise a lesser offense of unintentional second-degree murder as set out in subsection
(b) of K.S.A. 21-3402. See K.S.A. 21-3107(2)(a) ("A lesser included crime is [a] lesser
degree of the same crime."). So the identical offense doctrine does not apply to Friday's
31

situation. In short, the district court correctly sentenced Friday for the severity level 2
person felony and not the lesser included severity level 5 person felony.

Issue 7: Friday's prior convictions may be included in her criminal history score without
requiring a jury to prove their validity.

For Friday's last argument, she contends the district court violated her rights under
the Sixth and Fourteenth Amendments to the United States Constitution by relying on her
criminal history score to increase her sentence. Specifically, she contends that before her
prior convictions could be used, they were required to be reproven to a jury beyond a
reasonable doubt. Friday acknowledges we have previously rejected this position, and she
presents it strictly to preserve her federal review. See, e.g., State v. Baker, 287 Kan. 345,
371, 197 P.3d 421 (2008); State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002). We
continue to reject this argument.

Affirmed.