State v. Fleshman

1
NOT DESIGNATED FOR PUBLICATION

No. 118,975

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GEORGE E. FLESHMAN JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Jackson District Court; NORBERT C. MAREK JR., judge. Opinion filed September 27,
2019. Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before POWELL, P.J., GARDNER, J., and LAHEY, S.J.

PER CURIAM: George E. Fleshman Jr. appeals his conviction of the reckless
second-degree murder of his wife, Elizabeth (Beth) Jane Fleshman, arguing (1) the State
presented insufficient evidence he committed the murder under circumstances
manifesting an extreme indifference to the value of human life; and (2) the district court
clearly erred in giving the jury no instruction on the lesser included offense of
involuntary manslaughter. After a thorough review of the record, we find that sufficient
evidence supports Fleshman's conviction of second-degree murder and that the district
2
court did not clearly err in failing to give a jury instruction on the lesser included offense
of involuntary manslaughter. Accordingly, we affirm Fleshman's conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On October 20, 2015, Holton Police Officer Terry Clark was dispatched to a home
in Holton, Kansas, for a medical emergency. Clark met Fleshman at the front door, who
informed him that his wife was in the bedroom. Clark found Beth lying across the bed,
fully clothed, with her pants unbuttoned. Clark asked Beth what she needed but she only
groaned. Clark was able to get Beth to state her name but she appeared to go in and out of
consciousness.

Emergency Medical Technician (EMT) Jarrod Thompson was dispatched to the
Fleshman home to address a person with difficulty breathing and whose lips were turning
blue. On arriving, the EMTs could not take a stretcher inside due to clutter but found
Beth in the bedroom next to the living room. Thompson noticed an oxygen machine in
the living room, but Beth was not wearing oxygen. Beth could answer questions with
one-word answers. With questioning, Beth indicated she had difficulty breathing and was
not in pain. She did not appear in critical condition, but the EMTs had trouble getting her
blood pressure. With his partner, Thompson rolled Beth onto a spine board and took her
to the ambulance. He placed Beth on oxygen, and she was transported to Holton
Community Hospital.

Thompson had a brief conversation with Fleshman at the home. Fleshman told
Thompson and Clark that Beth got like that every six months. Beth would go to the
hospital, get medicine, get better, and come home. He gave Thompson Beth's medication
list and medications. Thompson asked if Fleshman would ride in the ambulance, but
Fleshman did not want to go to the hospital that night. He had taken a sleeping pill and
would go in the morning. Clark left the residence once the ambulance took Beth away.
3
That night, Clint Colberg, M.D., was the attending physician on call for Holton
Community Hospital's emergency room. Dr. Colberg received a phone call from a nurse
practitioner that Beth had low blood pressure and an altered mental status with no known
cause. Beth denied any recent changes in medications, falls, or traumas. Dr. Colberg
stated that generally a patient is the best source of information, but if the patient cannot
provide it, then doctors may obtain information from family or EMS personnel.

A chest x-ray showed potential pneumonia, and Beth's blood count indicated she
was anemic. While the hospital was awaiting the results of a CT scan, and because Beth
continued to deteriorate, the nurse practitioner requested Dr. Colberg come to the
hospital. On his way, Dr. Colberg learned the CT scan showed Beth had a ruptured spleen
which caused a hemorrhage into her abdomen.

On arriving at the hospital, Dr. Colberg could not question Beth because she was
unconscious, did not have a pulse, and was not breathing on her own. During his
examination, Dr. Colberg noticed no external trauma, bruising, or lacerations. Dr.
Colberg found Beth in a life-threatening condition. In addition to her ruptured spleen,
Beth's low blood pressure indicated a significant amount of blood loss. The hospital
developed a plan to transfer Beth to a facility with surgical capabilities. Dr. Colberg
attempted to contact Beth's husband several times without success. The hospital sent a
police officer to locate Fleshman and bring him to the hospital.

Clark received a call from the hospital and arrived at Fleshman's home around
12:16 a.m. After Clark knocked for several moments, Fleshman answered the door
wearing a t-shirt and underwear. Clark informed Fleshman of the hospital's request and
Fleshman stated he would go to the hospital. Clark had no concern with Fleshman's
ability to drive because Fleshman did not appear tired or under the influence of a sleeping
pill. Clark then left.

4
Fleshman arrived at the hospital before the ambulance transferring Beth had left.
Dr. Colberg advised Fleshman that Beth's chances of surviving were extremely low and
discussed possible withdrawal of care or continuing treatment. Dr. Colberg found
Fleshman's demeanor unusual because Fleshman tried to joke with him a little bit while
receiving the information. Fleshman later explained that, as a noncommissioned officer in
the U.S. Army for 17 years, he joked in stressful situations because it would relax him
and other people. Ultimately, Fleshman opted to continue with treatment and have Beth
transferred to a larger hospital. Dr. Colberg asked Fleshman whether Beth had fallen or
had any sort of trauma. Fleshman stated he was not aware of any falls or trauma but
stated Beth had fallen in the past without telling him.

Around 2 a.m., the ambulance transported Beth to a hospital in Topeka. Clark
testified he was dispatched to the Holton hospital around 1:30 a.m. because staff was
concerned about Fleshman driving while impaired by a sleeping pill. Clark stated he
found Fleshman sitting on a bench when he arrived. Fleshman told Clark that Beth was
being taken to Topeka and it did not look good. Fleshman stated he intended to go to
Topeka after he went home, got some coffee, and woke up a bit. Fleshman did not appear
impaired to Clark, but Clark followed Fleshman home and saw no signs of impairment in
Fleshman's driving.

Clark also spoke with hospital staff at that time, and he was asked if there was any
domestic assault history between the Fleshmans. Clark did not know of any. Later, Clark
requested dispatch look into the Fleshmans and he learned there had been a domestic
battery incident. Clark also contacted the Topeka hospital and learned Beth had a spleen
injury. Based on this information, Clark contacted the Jackson County Sheriff's Office.

Detective Phil McManigal of the Jackson County Sheriff's Office testified Clark
contacted him about Fleshman. McManigal went to the Fleshman home about mid-
morning the next day. Fleshman answered the door and appeared to have been in the
5
shower. Fleshman had not been to the Topeka hospital but agreed to go to the sheriff's
office to speak with McManigal.

During McManigal's interview, Fleshman stated he had not been to bed that night
but had contacted family and friends and posted a message about Beth on Facebook. The
Fleshmans had been married since 1990, and during that time Beth had had many
medical problems. She had undergone several back surgeries and had an internal pain
pump that pumped narcotics directly into her spine. She had COPD from smoking and
was supposed to be on oxygen at all times. Beth took blood thinners and frequently took
ibuprofen for massive headaches—which caused her to bleed easily. Beth used a wheel
chair, walker, or cane to move around. Fleshman stated that Beth fell a lot and did not
always tell him about it.

As to Beth's condition the previous night, Fleshman stated at about 6 or 6:30 p.m.,
he observed Beth with her hand on her stomach while she was asleep. Fleshman woke
Beth and asked if she was okay. Beth stated her stomach hurt and she went to lay down.
Fleshman turned on Beth's oxygen concentrator, and she went to bed. Around 9 or 9:30
p.m., Fleshman took his sleeping pill and went into the bedroom. When he turned on a
lamp, Beth had blue lips, appeared pale, had urinated herself, and was laying across the
bed. Fleshman stated she was curled onto her side and hugging a pillow. When he asked
if she was okay, Beth stated she did not feel good and her head fell back. Fleshman called
911. He saw no bleeding or bruises on Beth. Fleshman denied drinking alcohol and stated
the two had not argued. Fleshman stated he had had nothing to drink since June, when the
police were called because of a domestic disturbance between the couple.

After the interview, Fleshman went to the hospital in Topeka. Beth died at 6 p.m.
on October 21, 2015.

6
McManigal continued his investigation. During the investigation, Fleshman told
McManigal that Beth and he were the only people present in the house on October 19 and
20, 2015. Fleshman never told McManigal that he struck Beth or caused the injury. But
when McManigal asked Fleshman whether it was possible that he struck Beth or caused
the injury, Fleshman said anything was possible but he could not recall.

Due to the circumstances of Beth's death, the hospital ordered an autopsy.
McManigal attended the autopsy completed by Dr. Erik Mitchell. Dr. Mitchell found a
single bruise on Beth's forearm but documented no other bruising or external injury to her
body. In relevant part, Dr. Mitchell determined Beth's cause of death to be a tear to her
spleen which caused a hemorrhage and a significant amount of blood loss in her
abdomen. Dr. Mitchell estimated Beth lost over 2 liters of blood.

While Dr. Mitchell determined Beth's cause of death to be a tear due to abdominal
trauma, he could not anatomically determine how the trauma occurred, and so the manner
of death was undetermined. The spleen is located under the rib cage, and in reviewing
Beth's spleen, Mitchell found the size normal. Based on her anatomy, Mitchell could
determine the impact came from the side or front. Mitchell found the lack of external
bruising and broken ribs indicated Beth did not suffer trauma from a narrow object
because narrow objects are more likely to leave marks than blunt objects. Because Beth
also had some fat on her stomach, she was less likely to bruise. Mitchell determined Beth
suffered trauma from a blunt object or blunt surface.

In Dr. Mitchell's experience, splenic tears almost always related to trauma, such as
car crashes; interpersonal violence, such as a blow to the abdomen or chest; crush
injuries; or a fall from sufficient height. Dr. Mitchell also found a blood clot on Beth's
spleen. Dr. Mitchell determined Beth's body could still form clots, despite her use of
blood thinners, and the membrane on the clot indicated the trauma had not recently
happened but had happened sometime—possibly days—before her death. However, Dr.
7
Mitchell could not determine the precise time for when the trauma to Beth's spleen
occurred.

Dr. Mitchell stated Beth's use of blood thinners would make it more likely for her
to bruise, but he found the lack of small bruises on Beth's body indicated she had a lower
propensity to bleed from minor trauma and did not suffer from frequent falls. He also
found it unlikely Beth suffered a spontaneous tear to her spleen, i.e., a tear without
physical trauma, because of her normal-sized spleen and the lack of disease in the spleen.
Dr. Mitchell stated that Beth's medical conditions and medication would cause Beth to
bleed more once bleeding started but would not cause her spleen to tear. Dr. Mitchell
believed domestic abuse could have led to Beth's injury. McManigal later admitted he
may have told the doctor about the past domestic violence between the couple.

During the investigation, McManigal also interviewed 30 witnesses, obtained a
search warrant, and conducted a search of Fleshman's house. The State later charged
Fleshman with the unintentional, reckless second-degree murder of Beth in violation of
K.S.A. 2015 Supp. 21-5403(a)(2).

At trial, McManigal testified that Beth's sister, Coila Rush, told him she called
Beth on October 19, 2015. Beth said she could not talk because Fleshman was mad about
having to go to court. Rush spoke to Beth about two days before her death, could hear
Fleshman yelling while talking to Beth, and told Beth to get out of the house. Beth told
Rush she was okay and she had nowhere to go. Rush did not know what Fleshman was
angry about.

Several witness also discussed Beth's daily routine and the Fleshmans' marriage.
Beth had limited mobility and rarely left the house. She never got dressed but remained in
her pajamas or night clothes during the day. Due to her health problems, Beth could no
longer work. She refused to sleep in the same bed as Fleshman and spent most of her
8
days on the couch, where she also slept. Beth had to surrender her driver's license and
relied on family, friends, or Fleshman for rides to her appointments. Beth typically used a
cane and, while she moved slowly, she had little trouble going up and down the steps on
her front porch. Beth told her brother she fell sometimes but that she got right back up.
Beth's mobility test scores showed she had a low risk of falling.

Her brother, Arnold Gleason, who lived with the Fleshmans for about a month
when he first moved to Holton in March 2010, stated he did not know Beth to go upstairs
in the house. Gleason stated Beth did not trust herself to go up that many stairs. Beth's
friend, Christina Kaler, testified she had been upstairs in the Fleshmans' home two or
three times and claimed Beth never went upstairs because she was scared she would fall
down the stairs. Kaler stated Beth always asked her or Fleshman to takes things up or
down the stairs.

As to the marriage, the couple had difficulties. The couple previously lost a home
to foreclosure. At one point, Fleshman learned Beth may have been unfaithful, and the
two separated. The couple reunited a few years later. In June 2015, the couple was
arrested after the police were called. Officer Brian Barber of the Holton Police
Department responded and testified that Fleshman had what appeared to be a defensive
wound on his arm that looked like a deep scratch from a nail. Beth had a chipped nail, a
bruise on her breast, and blood on her shirt. Beth denied or did not remember scratching
Fleshman. Beth also did not indicate that Fleshman caused her injuries and denied that he
hit her. Beth did not appear to have been drinking, but Fleshman was intoxicated. Later
tests showed Fleshman was above the legal driving limit.

The June 2015 incident started because the two had been arguing and Fleshman
made threatening comments towards Beth. Fleshman yelled at Beth to get the dogs back
inside the house or she would be dead. Beth's son from a prior marriage, Robert Cripps,
testified Beth told him Fleshman had wanted to kick her out of the house that night and
9
threatened to kill her if she did not leave. Barber stated that Fleshman denied threatening
or hitting Beth. Beth told Barber that Fleshman had been verbally abusive towards her
and her family, threatened to hit her, and she was scared he would hit her. An eyewitness
confirmed the couple's account of the argument and stated Fleshman had belittled Beth
about not getting things done around the house and called her family stupid. After the
incident, Beth moved to Topeka to live with her sister, Bonnie, and the couple had been
ordered not to contact each other. Eventually, Beth moved back in with Fleshman.

Fleshman was a heavy drinker. Gleason stated Fleshman worked the graveyard
shift, would come home in the morning, and could drink half of a half-gallon of whiskey
in one day. Gleason stated he believed Fleshman drank like that before Gleason moved in
with the couple and that Fleshman drank daily when he lived there. Cripps testified he
lived with the couple as a teenager about 20 years ago. He maintained contact with his
mother by telephone and testified he knew Fleshman drank alcohol and became mean—
such as name-calling—when he drank a little too much. Cripps stated his mother
typically reacted by crying and blaming herself.

Cripps testified his mother had debated moving out or leaving Fleshman since
about 2010. Beth had discussed with others leaving Fleshman but had said she could not
leave because she needed his health insurance and she lacked financial resources. Rush
stated the couple kept separate bank accounts; Fleshman's money went into his account,
and Beth only received a tiny social security check. Rush stated Fleshman had all the
spending responsibilities because Beth could not go anywhere.

Based on other witnesses' accounts, Fleshman was abusive. McManigal admitted
that witnesses reported hearing Fleshman become violent but no witness reported seeing
Fleshman become violent in any other way towards Beth. But Beth told her friend, Lisa
Wamego, that Fleshman became verbally abusive when he drank and treated her like she
was nothing. Fleshman did not like it when Beth talked on the phone to her friends and
10
family. Gleason had heard Fleshman call Beth a bitch and lazy whore and stated he
would cuss at Beth for not having his meals done on time and for failing to complete the
to-do list of chores he would leave for her. Gleason told McManigal he had seen
Fleshman get angry and double up his fists during an argument. But Gleason testified he
never saw Fleshman get physically aggressive towards Beth.

On September 23, 2015, Beth reported to Josh Moulin—a Physician's Assistant at
Holton Community Hospital who had worked with Beth for a few years—that Fleshman
was verbally and emotionally abusive. Beth described Fleshman as an alcoholic. Moulin
stated that Beth was very emotional and had to pause at times due to her crying. Beth
stated Fleshman yelled at her a lot but denied to Moulin that Fleshman had ever
physically abused her. Moulin told Beth she needed to leave the home; he would follow
up with her in a month and, if she had not moved out, he would report Fleshman to adult
protective services.

Beth had told her friend, Pat Usry, she was frightened and scared to death of
Fleshman. Beth also told Rush she feared Fleshman. Beth disclosed to Usry that
Fleshman was constantly drinking and sometimes she would have to find a safe place to
hide. Beth told Usry that when Fleshman got drunk, he got physical and would pull her
arms and shove her. Beth never told Usry that Fleshman smacked her, but Beth told Rush
if anything happened to her, Fleshman did it. Beth similarly told Kaler she would leave a
note in her house stating that if she passed away, George did it and to look into it. Upon
searching the house, the police found a note inside of a vacuum box with many other
papers. A document examiner with the Kansas Bureau of Investigation conducted a
handwriting analysis and determined that Beth wrote the note. The note read:

"To bring it up there would be hell for me to pay so I won't say a word but
continue to take it.
11
"As a side note if I ever land up in the hospital or worse with broken bones, cut
bruises, slug marks rest assured I swear to God they came from my husband and to the
Dr's, law enforcement you all do what you think is best. I will not argue with you.

"I will add I am becoming honestly afraid to even say anything for fear of his
God awful temper, it is very very frightening.

"Thanks for listening,
"B."

Witnesses reported seeing bruises on Beth's body. Wamego testified she saw
bruises all up Beth's side when she visited the couple in another house in Holton. Beth
told Wamego she fell. Beth James, a co-worker of Fleshman's, testified she went to the
Fleshmans' home once but could not recall if her visit occurred before 2010. Beth
answered the door, and James saw bruises all over Beth's neck going up the side of her
face and on parts of her arms. When James asked Fleshman about it, he told her that Beth
falls. Kaler testified she once asked Beth if she got the bruises from falling, and Beth
responded no, she got bruises from her dogs jumping on her. Kaler stated Beth did run
into things and would fall off balance but she never saw Beth fall.

Fleshman testified in his defense. He stated that on October 19, 2015, Beth told
him she went upstairs and got as much of her craft materials as possible to bring
downstairs. Beth told Fleshman she fell. He testified Beth had gone upstairs and fallen
before, and he would learn about it because she always told him. Fleshman testified he
never hit Beth and did not hit her within a week of her death. On cross-examination,
Fleshman explained he did not tell McManigal about Beth's fall previously because he
did not recall Beth's statement. Fleshman also confirmed he told police he stayed home
after seeing Beth at the Holton hospital. But he also confirmed his bank records showed
he made a withdrawal at an ATM located 20 miles away near Powhattan at 2:11 that
12
morning. Fleshman denied that his cell phone records showed he exchanged text
messages with various women between August 2015 and October 2015.

Fleshman called Manny Moser, M.D., to testify on his behalf. Dr. Moser testified
Beth's lifestyle contributed to her deteriorating health, such as her smoking, lack of
exercise, poor diet, age, and use of prescription drugs. Dr. Moser testified he had
encountered a ruptured spleen during his time practicing as a doctor that resulted from a
man falling while working on his house and hitting his abdomen. Dr. Moser described the
spleen as a very fragile organ. Thomas Young, M.D., testified that in his opinion, Beth's
ruptured spleen and bleeding could have been caused by a fall or multiple falls over time
in conjunction with her COPD and her use of blood thinners and ibuprofen. In contrast,
as stated above, Dr. Mitchell testified a ruptured spleen generally requires the use of
physical force. Similarly, Dr. Colberg testified in his experience that he had only seen a
ruptured spleen from high-impact accidents that required a significant amount of trauma,
such as a car or ATV accident. Dr. Colberg testified he had never seen a lacerated spleen
from a fall or a routine fall from standing height. Moulin testified injuries to the spleen
generally required a high-impact injury.

After the presentation of evidence, the jury found Fleshman guilty of the second-
degree murder of Beth. The district court subsequently sentenced Fleshman to 117
months in prison with 36 months' postrelease supervision.

Fleshman timely appeals.

I. DID THE STATE PRESENT INSUFFICIENT EVIDENCE TO CONVICT FLESHMAN OF
SECOND-DEGREE MURDER?

As Fleshman challenges the sufficiency of the State's evidence, we apply our well
known standard of review.
13
"'"When the sufficiency of the evidence is challenged in a criminal case, this
court reviews the evidence in a light most favorable to the State to determine whether a
rational fact-finder could have found the defendant guilty beyond a reasonable doubt."'
"'In making a sufficiency determination, the appellate court does not reweigh evidence,
resolve evidentiary conflicts, or make determinations regarding witness credibility."' An
appellate court will reverse a guilty verdict even if the record contains some evidence
supporting guilt only in rare cases when the court determines that evidence was so
incredulous no reasonable fact-finder could find guilt beyond a reasonable doubt.
[Citations omitted.]" State v. Torres, 308 Kan. 476, 488, 421 P.3d 733 (2018).

Fleshman argues the State's case was based entirely on circumstantial evidence.
However, "'[a] conviction of even the gravest offense can be based entirely on
circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a
reasonable one, the jury has the right to make the inference.' [Citation omitted.]" State v.
Brown, 306 Kan. 1145, 1157, 401 P.3d 611 (2017). "Circumstantial evidence, in order to
be sufficient, 'need not rise to that degree of certainty which will exclude any and every
other reasonable conclusion.' Instead, circumstantial evidence 'affords a basis for a
reasonable inference by the jury' regarding a fact at issue. [Citations omitted.]" State v.
Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016).

Because the probative values of the evidence are intrinsically similar, we
draw no distinction between the weight assigned direct and circumstantial
evidence. State v. Darrow, 304 Kan. 710, Syl. ¶ 3, 374 P.3d 673 (2016). "Instead,
the appellate court's function is to determine if the direct and circumstantial
evidence, viewed in a light most favorable to the State, could have reasonably
supported a rational factfinder's guilty verdict." 304 Kan. 710, Syl. ¶ 3.

"[C]onvictions based entirely upon circumstantial evidence '"can present a special
challenge to the appellate court"' because '"the circumstances in question must
themselves be proved and cannot be inferred or presumed from other circumstances."'
Where the State relies on such inference stacking, i.e., where the State asks the jury to
14
make a presumption based upon other presumptions, it has not carried its burden to
present sufficient evidence. [Citations omitted.]" State v. Banks, 306 Kan. 854, 859, 397
P.3d 1195 (2017).

While the State cannot "rely upon the theory that presumption A leads to presumption B
leads to presumption C leads to fact D, it is perfectly proper for the State's case to be
grounded upon a theory that presumption A, presumption B, and presumption C all
separately point to fact D." 306 Kan. at 861.

In reviewing the elements of second-degree murder, K.S.A. 2018 Supp. 21-
5403(a)(2) provides that: "Murder in the second degree is the killing of a human being
committed . . . unintentionally but recklessly under circumstances manifesting extreme
indifference to the value of human life." Under K.S.A. 2018 Supp. 21-5202(j), "[a]
person acts 'recklessly' or is 'reckless,' when such person consciously disregards a
substantial and unjustifiable risk that circumstances exist or that a result will follow, and
such disregard constitutes a gross deviation from the standard of care which a reasonable
person would exercise in the situation."

The district court instructed the jury:

"The defendant is charged with murder in the second degree. The defendant
pleads not guilty.

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

"1. The defendant killed [Beth] unintentionally but recklessly under
circumstances that show extreme indifference to the value of human life.

"2. This act occurred on or about the 21st day of October, 2015, in Jackson
County Kansas.

15
. . . .

"A defendant acts recklessly when the defendant consciously disregards a
substantial and unjustifiable risk that certain circumstances exist; or a result of the
defendant's actions will follow.

"This act by the defendant regarding the risk must be a gross deviation from the
standard of care a reasonable person would use in the same situation."

Fleshman argues the State presented no evidence he acted beyond simple
recklessness and failed to show he acted under circumstances manifesting extreme
indifference to the value of human life. Fleshman contends the State only presented
evidence he had knowledge of Beth's various medical conditions. We are unpersuaded by
Fleshman's argument.

To reverse a conviction based on insufficient evidence, the reviewing court must
find the evidence "so incredulous no reasonable fact-finder could find guilt beyond a
reasonable doubt." Torres, 308 Kan. at 488. If based on circumstantial evidence, the
evidence "'need not rise to that degree of certainty which will exclude any and every
other reasonable conclusion.' Instead, circumstantial evidence 'affords a basis for a
reasonable inference by the jury' regarding a fact at issue. [Citations omitted.]" Logsdon,
304 Kan. at 25.

In reviewing the meaning of the element of "extreme indifference to the value of
human life" in a void for vagueness challenge, our Supreme Court stated: "Reckless
involuntary manslaughter differs from unintentional but reckless second-degree murder
'only in the degree of recklessness required to prove culpability.' [Citation omitted.]"
State v. Brown, 300 Kan. 565, 588, 331 P.3d 797 (2014). While reviewing a district
court's denial of a defendant's request to instruct on the lesser included offenses of
16
reckless second-degree murder and reckless involuntary manslaughter in a prosecution
for first-degree murder, our Supreme Court explained:

"The 'difference between unintentional second-degree murder and involuntary
manslaughter is one of degree and not one of kind.' 307 Kan. at 583. There is a
'recognized spectrum of culpability for the results of one's reckless acts.' 307 Kan. at 583.
Recklessness attributable to '"purpose or knowledge is treated as depraved heart second-
degree murder, and less extreme recklessness is punished as manslaughter."' 307 Kan. at
583 (quoting State v. Robinson, 261 Kan. 865, 877-78, 934 P.2d 38 [1997]). In Gonzalez,
the 'instructions required the jury to place [the defendant's] conduct on that spectrum by
deciding whether the facts showed he was not just reckless in disregarding the risk that
[the victim] would die, but also extremely indifferent to the value of human life.'
Gonzalez, 307 Kan. at 583." State v. James, 309 Kan. 1280, 1300-01, 443 P.3d 1063
(2019).

In other words, to determine if the recklessness arises to an extreme indifference to the
value of human life, "[a] jury only has to look at the facts as alleged, determine whether
those facts are properly proven, and then apply them to the offense's elements." State v.
Gonzales, 307 Kan. 575, Syl. ¶ 5, 412 P.3d 968 (2018).

In his brief, Fleshman focuses on the lack of direct evidence showing the manner
of how he caused the fatal injury to Beth. Admittedly, this case presents a closer call than
many other sufficiency of the evidence challenges to a second-degree murder conviction
typically because an eyewitness recounts the events or the defendant admits to causing
the fatal injury or injuries. See, e.g., State v. Kirby, 272 Kan. 1170, 1190-91, 39 P.3d 1
(2002) (holding sufficient evidence where witness saw defendant kick victim more than
dozen times while victim was lying on ground and victim later died of ruptured spleen);
State v. Robinson, 261 Kan. 865, 881, 934 P.2d 38 (1997) (holding sufficient evidence
where witness saw and defendant admitted to hitting victim in back of head with golf
17
club). Here, the State lacks direct evidence regarding the immediate circumstances
surrounding Beth's fatal injury.

However, "'[i]f an inference [drawn from the evidence in support of a fact] is a
reasonable one, the jury has the right to make the inference.'" Brown, 306 Kan. at 1157.
Here, the jury heard evidence that Fleshman had abused Beth verbally and emotionally.
According to witnesses, Beth had contemplated leaving Fleshman since 2010, had said
she was scared and frightened of Fleshman, and had said she sometimes had to find a safe
place to hide. One witness described hearing Fleshman yelling in the background during
a phone call with Beth two days before her death.

While no witnesses had seen Fleshman physically abuse Beth, the police were
called in June 2015 for a domestic disturbance. Fleshman had a deep scratch to his arm
and Beth had a bruise on her breast and blood on her shirt, but Beth denied that Fleshman
had physically hurt her. Witnesses testified that Beth had said if something happened to
her, then Fleshman did it and that she would leave a note stating that if something
happened to her, Fleshman did it and to look into it. After Beth's death, police found a
note written by Beth, detailing that if there were physical marks or injuries found on her
body, her husband caused them.

Fleshman denied hitting Beth. Dr. Colberg testified that, in his experience, he had
never seen a spleen rupture caused from a routine fall or a fall from standing height.
During the autopsy, Dr. Mitchell found Beth's spleen was normal sized and lacked signs
of disease, and he could not determine the manner of death. However, the autopsy
showed she died from blunt trauma that caused a tear in her spleen and hemorrhage in her
abdomen and that the blow to Beth's abdomen likely came from the front or side. Beth
had no bruising on her abdomen or broken ribs, which indicated a blunt object rather than
a narrow one caused the trauma. Moreover, a membrane development on a blood clot on
Beth's spleen indicated her injury had not recently happened but could have happened
18
days before. Dr. Mitchell testified that interpersonal violence—such as a blow to the
abdomen—and domestic abuse could cause a splenic tear. Generally, the State's medical
witnesses testified that a ruptured spleen or splenic tear usually requires a high-impact,
physical injury.

Fleshman stated Beth relied on a wheelchair, walker, or cane to get around. He
said she was on blood thinners which caused her to bleed even from minor trauma.
Fleshman told McManigal that Beth always needed to be on oxygen for her COPD, and
he had turned on her oxygen concentrator when she went to lay down. Notably, Fleshman
testified Beth fell when she went upstairs but he did not mention Beth's fall because he
did not recall it at the time. Witnesses testified Beth rarely got dressed and remained in
her pajamas. Beth never slept in the bedroom but largely spent her days on the couch
where she also slept, and Beth did not typically go upstairs. Moreover, when the EMTs
arrived, Beth was found in the bedroom, which was located on the first floor behind the
living room, lying on the bed fully clothed, and her oxygen machine was in the living
room.

In his first interview with McManigal, Fleshman acknowledged Beth had limited
mobility and relied on him to get to appointments. Fleshman did not ride in the first
ambulance with Beth. After determining Beth had a ruptured spleen, medical staff were
unable to contact Fleshman and sent police to his home. Even after learning Beth had an
extremely low chance of survival, Fleshman declined to ride to the Topeka hospital in the
ambulance. Fleshman said he had taken a sleeping pill, but Clark testified he observed no
impaired driving when he followed Fleshman home from the Holton hospital. Fleshman
testified he remained at home after returning from the Holton hospital, yet his bank
records confirmed he visited an ATM about 20 miles away around 2 a.m.

The medical testimony providing the nature of the injury needed to cause a
ruptured spleen, Fleshman's knowledge of Beth's health and medical history, evidence the
19
injury to Beth could have occurred days before, Beth's dependence on others, and
Fleshman's actions before and after seeking emergency help for Beth's condition provides
sufficient evidence for a reasonable fact-finder to conclude Fleshman acted recklessly
and with an extreme indifference to the value of human life in causing Beth's death. Thus,
the jury had sufficient evidence to support finding Fleshman guilty of second-degree
murder.

II. DID THE DISTRICT COURT CLEARLY ERR IN PROVIDING NO JURY INSTRUCTION ON
INVOLUNTARY MANSLAUGHTER?

Next, Fleshman argues some evidence at trial supported a jury instruction on the
lesser included offense of involuntary manslaughter. Fleshman concedes he failed to
object to the failure to give the lesser included offense instruction and, as a result, the
clearly erroneous standard applies. See K.S.A. 2018 Supp. 22-3414(3); State v. Cameron,
300 Kan. 384, 389, 329 P.3d 1158, cert. denied 135 S. Ct. 728 (2014). To establish clear
error, "[w]e first determine whether the instructions were legally and factually
appropriate, employing an unlimited review of the entire record. If error is found, 'the
defendant must firmly convince the court the jury would have reached a different result
without the error.' [Citations omitted.]" Brown, 306 Kan. at 1164.

A. Was a jury instruction for involuntary manslaughter legally and factually
appropriate?

Fleshman first argues that a jury instruction for the lesser included offense of
involuntary manslaughter was legally appropriate.

"'An instruction on a lesser included crime is legally appropriate. State v. Plummer, 295
Kan. 156, 161, 283 P.3d 202 (2012). And a lesser included crime includes a "lesser
degree of the same crime." K.S.A. 2017 Supp. 21-5109(b)(1). This court has recognized
20
five degrees of homicide. In descending magnitude, they are capital murder, first-degree
murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter.
State v. Carter, 305 Kan. 139, 161, 380 P.3d 189 (2016) (citing State v. Cheever, 295
Kan. 229, 258-59, 284 P.3d 1007 [2012]).' Pulliam, 308 Kan. at 1362." James, 309 Kan.
at 1298.

Fleshman is correct. Because involuntary manslaughter is a lesser degree of
second-degree murder, the instruction would have been legally appropriate. See 309 Kan.
at 1298.

Next, Fleshman argues there was some evidence admitted at trial to support that
the crime of killing was committed only recklessly. K.S.A. 2018 Supp. 21-5405(a)(1)
defines involuntary manslaughter, in part, as "the killing of a human being committed . . .
[r]ecklessly." The district court instructed the jury on the definition of reckless or to act
recklessly pursuant to K.S.A. 2018 Supp. 21-5202(j) in the jury instruction on second-
degree murder. The district court also instructed the jury that to find Fleshman guilty of
second-degree murder, it had to find Fleshman acted recklessly and in a manner
manifesting an extreme indifference to the value of human life. Thus, when it convicted
Fleshman of second-degree murder, the jury found the State proved beyond a reasonable
doubt that Fleshman acted recklessly and in the heightened degree of recklessness.

Fleshman argues that because the only difference between a reckless second-
degree murder and reckless involuntary manslaughter is the degree of recklessness, the
district court erred in failing to give an involuntary manslaughter instruction. Our
Supreme Court addressed this argument in James, 309 Kan. at 1300: "It does not follow
automatically that facts supporting a reckless second-degree murder instruction also
support a reckless involuntary manslaughter instruction because of the difference in
degree of recklessness between the crimes mentioned above." Instead, the James court
reviewed the evidence to determine if an involuntary manslaughter instruction was
21
factually appropriate, although it had already found a second-degree murder instruction
factually appropriate. 309 Kan. at 1300.

There, the James court found the second-degree murder instruction factually
appropriate because some testimony and physical evidence supported that James did not
intend to kill the victim. "The first shot fired by James went into the air and hit the
ceiling. James testified that he was not firing at anyone when he shot the second time.
This testimony echoed what he had told Kindred when he learned McClennon was dead."
309 Kan. at 1299-1300. The James court also found an involuntary manslaughter
instruction was factually appropriate.

"If jurors accepted that James acted recklessly, the evidence did not foreclose culpability
at either end of the spectrum for the results of his reckless acts. The varying accounts of
what happened inside the basement—and outside view of any surveillance cameras—
presented the jury with a range of possibilities. It was the jury's task, not the district
judge's, to consider the evidence and assess factors—such as the number of people in the
basement and James' reasons for shooting—before reaching a conclusion on whether
James' recklessness rose to the second-degree murder level of extreme indifference to the
value of human life. The district judge also erred in refusing to give the reckless
involuntary manslaughter instruction." 309 Kan. at 1301.

The James court found the instructional errors harmless because the jury found
James guilty of first-degree murder, which required jurors to conclude the killing was
intentional and premediated and reasoned the verdict eliminated the possibility the jury
viewed the killing as merely reckless. 309 Kan. at 1302.

Unlike James, neither party here argues the evidence established that Fleshman
intended to kill Beth, and the jury did not convict Fleshman of premeditated first-degree
murder. In this case, the medical testimony established that Beth's cause of death was a
high-impact, blunt, physical force to her abdomen that resulted in a tear to her spleen and
22
hemorrhage into her abdomen. In finding Fleshman guilty of reckless second-degree
murder beyond a reasonable doubt, the jury had to find Fleshman acted "unintentionally
but recklessly under circumstances manifesting extreme indifference to the value of
human life." See K.S.A. 2018 Supp. 21-5403(a)(2).

Fleshman argues the jury did not have the option of determining whether reckless
conduct alone caused Beth's death. But Fleshman merely argues that there was some
evidence he acted only recklessly. He provides no explanation of the record evidence or
authority in support of his argument. That said, the record evidence provides support for
Fleshman's assertion that a lesser included offense instruction on involuntary
manslaughter was factually appropriate.

To establish the recklessness required to prove second-degree murder, the jury
must decide "the facts showed [the defendant] was not just reckless in disregarding the
risk that [the victim] would die, but also extremely indifferent to the value of human life."
Gonzalez, 307 Kan. at 583. In other words, the jury determines from the facts whether the
higher standard of recklessness applies or the lower standard applies. See James, 309
Kan. at 1299-1301 (describing difference of recklessness required to show second-degree
murder and involuntary manslaughter as one of degree which, when jury instructed on
both, requires jury to determine from facts where defendant's culpability falls on
spectrum). In this case, the jury did not have the option of considering whether
Fleshman's conduct only met the lower standard of recklessness—i.e., that Fleshman
consciously disregarded a substantial and unjustifiable risk that circumstances existed or
that a result would follow, and his disregard constituted "a gross deviation from the
standard of care which a reasonable person would exercise in the situation." See K.S.A.
2018 Supp. 21-5202(j).

Notably, as stated above, the State lacked direct evidence showing the immediate
circumstances surrounding Beth's death. There was conflicting evidence regarding the
23
cause, whether it was from a fall or a physical blow to her abdomen by Fleshman. The
manner of the injury required to cause a ruptured spleen—that led to Beth's death—could
have arguably occurred from Fleshman's reckless conduct alone. Dr. Mitchell testified a
blow to the abdomen from interpersonal violence could cause a splenic tear, but there
was no evidence of how many blows or impacts to Beth's abdomen resulted in the splenic
tear. Multiple witnesses and Fleshman stated Beth had no signs of bleeding or bruising on
her abdomen. Due to a lack of external injury, Fleshman may have felt less pressure to
seek medical attention for Beth which could explain the autopsy findings that the injury
could have occurred days before. In turn, some evidence supported that Fleshman did not
act with an extreme indifference to the value of human life but acted in gross deviation
from the standard of care a reasonable person would exercise and with a conscious
disregard to a substantial and unjustifiable risk in causing a blunt, physical blow to Beth's
abdomen and in delaying seeking medical attention for Beth. Thus, a jury instruction on
the lesser included offense of involuntary manslaughter was factually appropriate.

B. Does Fleshman firmly convince us the jury would have reached a different
result if an involuntary manslaughter instruction had been given?

Even if the district court erred in failing to give the lesser-included instruction on
involuntary manslaughter, we must still be firmly convinced the jury would have reached
a different result absent the error. See Brown, 306 Kan. at 1164. "'Just because we find
that a rational jury could have found [the defendant] guilty of the lesser included offense
does not necessarily mean that we believe that the jury would have convicted [him or] her
of the lesser offense.'" State v. Cooper, 303 Kan. 764, 772, 366 P.3d 232 (2016). As with
the sufficiency of the evidence issue, this instructional error issue also presents a close
call because its resolution turns largely on the burden of proof. Unlike in the present case,
where a party's offering of a lesser included instruction is rejected by the district court, it
is the State's burden to persuade the reviewing court that there is no reasonable
probability the error affected the outcome of the trial. See State v. Plummer, 295 Kan.
24
156, 162-63, 283 P.3d 202 (2012). But under the clear error standard, it is Fleshman's
duty to firmly convince us the jury would have reached a different verdict but for the
error. Given the highly controverted nature of the evidence, that is a tall order.

Here, the State argues the jury had the option to acquit Fleshman if the jury found
his actions did not rise to the level of manifesting an extreme indifference to the value of
human life. The State also asserts that the "skip rule" should apply because the jury did
not consider the lesser included offense of voluntary manslaughter (as instructed by the
district court) and convicted Fleshman of reckless, second-degree murder.

Our Supreme Court has explained:

"The skip rule '"is not really a rule at all in the sense that it must be invariably or
even routinely applied . . . . It is, rather, simply a logical deduction that may be drawn
from jury verdicts in certain cases."' Those certain cases are ones in which 'the elements
of the crime of conviction, as compared to a rejected lesser included offense, necessarily
show that the jury would have rejected or eliminated an even lesser offense.' When these
circumstances exist, the skip rule provides 'a route to harmlessness.' [Citations omitted.]"
State v. Longoria, 301 Kan. 489, 515-16, 343 P.3d 1128 (2015).

Our Supreme Court also has cautioned against applying the skip rule automatically but
has explained the rule should be considered as part of the applicable harmlessness test.
See State v. Barrett, 309 Kan. 1029, 1037-39, 442 P.3d 492 (2019).

Based on the verdict, the jury found Fleshman guilty of reckless, second-degree
murder and did not consider the lesser offense of voluntary manslaughter. But the
dissimilarity in the elements of reckless second-degree murder and reckless involuntary
manslaughter undermine application of the skip rule in this case, particularly because the
lesser included offense of voluntary manslaughter instructed upon by the district court
25
included the element requiring the State to prove Fleshman acted upon a sudden quarrel
or in the heat of passion, evidence which is lacking in the record.

Nevertheless, Fleshman provides no record evidence to support his claim the jury
could have found his conduct amounted only to simple recklessness and did not rise to
the level of manifesting extreme indifference to the value of human life. The district court
instructed the jury that the State had the burden of proving beyond a reasonable doubt
that Fleshman committed the second-degree murder recklessly and that his conduct
manifested an extreme indifference to the value of human life. The district court
instructed the jury it could consider the lesser included offense of voluntary manslaughter
if it did not agree that Fleshman committed second-degree murder. The jury found
Fleshman guilty of reckless, second-degree murder and determined the facts supported
that his conduct met the heightened recklessness standard.

When instructed, a jury determines from the facts whether a defendant acted with
the level of recklessness needed to support a conviction of second-degree murder or
involuntary manslaughter. See James, 309 Kan. at 1299-1301. The jury here concluded
from the evidence that Fleshman acted recklessly and manifested an extreme indifference
towards the value of human life. Reasonable people could disagree with the jury's verdict,
but Fleshman has not firmly convinced us that the jury would have reached a different
verdict, i.e., find that Fleshman was not guilty of second-degree murder but instead guilty
of involuntary manslaughter, if the jury had been so instructed. As a result, the district
court did not clearly err in failing to instruct the jury on the lesser included offense of
involuntary manslaughter.

Affirmed.