Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge.
BY THE COURT
1. When the sufficiency of evidence is challenged in a criminal case, an appellate court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In determining whether there is sufficient evidence to support a conviction, the appellate court does not reweigh the evidence or the credibility of witnesses.
2. The Kansas Supreme Court has stated that in order to justify instructing the jury on the lesser included offense of voluntary manslaughter arising from a sudden quarrel or heat of passion, there must be severe provocation. The provocation, whether it be a sudden quarrel or some other form of provocation, must be sufficient to cause an ordinary person to lose control of his or her actions and reason. Mere words or gestures, however insulting, do not constitute adequate provocation, but insulting words when accompanied by other conduct, such as assault, may be considered. Similarly, mere evidence of an altercation between parties does not alone support a finding of sufficient provocation to justify instructing the jury on voluntary manslaughter as a lesser included offense.
3. State v. Harris, 27 Kan.App.2d 41, 998 P.2d 524 (2000), is distinguished and does not apply to uphold the defendant's voluntary manslaughter conviction under the facts of this case.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN and ATCHESON, JJ.
Jessika Gooding appeals following her conviction of one count of voluntary manslaughter. Gooding claims: (1) there was insufficient evidence of a sudden quarrel to convict her of voluntary manslaughter; (2) the district court erred in instructing the jury on the definition of " knowingly" ; (3) the district court erred in failing to consider her ability to pay the Board of Indigent Defense Services (BIDS) application fee; and (4) the district court violated her constitutional rights when it imposed an increased sentence based upon her prior criminal history without requiring the State to prove the criminal history to a jury beyond a reasonable doubt.
We agree with Gooding that under the facts of this case, there was insufficient evidence of a sudden quarrel to support her conviction of voluntary manslaughter. We also agree with Gooding that without sufficient evidence of a sudden quarrel between her and the victim, there is no legal basis to uphold her voluntary manslaughter conviction even if the evidence may have been sufficient to support a conviction of intentional second-degree murder. Thus, we reverse the district court's judgment and remand with directions to discharge Gooding.
Factual and Procedural Background
On the morning of January 7, 2012, Gooding was preparing to visit several rental properties with her boyfriend, Christopher
Mills. Gooding had arranged to meet with the landlord of one of those properties that morning--the earlier the better. She and Mills had spent the night at the home of Gooding's mother, located five or six houses north of the intersection of Santa Fe and Kinkaid Street in Wichita. Gooding was ready to go before Mills. She went outside to start her car, which was parked on Santa Fe in front of the house. As Gooding sat in the car, she saw Mills emerge from the house wearing a tank top. Concerned about the " chilly" temperature and Mills looking presentable for the meeting with the landlord, Gooding told him to go back inside the house and put a sweater on if he was going to accompany her to the rental property.
Mills was in a " grumpy" mood, and when he turned and re-entered the house, he shut the screen door and front door. Gooding interpreted this as a sign that Mills was not going to come with her; she figured he was going back to bed. Gooding began driving toward the intersection of Santa Fe and Kinkaid Street, where she stopped at a stop sign. While stopped at the intersection, Gooding heard Mills yelling at her to wait. Gooding later testified that Mills was not being kind or reasonable.
Mills approached Gooding's car. He was standing close to the passenger's side of the vehicle " right on the curb area," looking in the window and gesturing with his hands. Gooding testified that she, too, was gesturing with her right hand and beckoning Mills to " come on" and get in the car. As this was happening, Gooding noticed a man in an SUV drive by. She testified that Mills was " cussing [her] out," acting belligerently, and waving his arms. Gooding said she just wanted him to calm down so they could go.
The parties dispute what happened next. Gooding testified that Mills was " hyped up" and upset that she had left him at her mother's house. He was walking back and forth between Gooding's car and the grassy easement next to the curb. Gooding decided that she would just " get out of there" because it was obvious to her that Mills was mad and did not intend to go with her. Gooding turned the corner and started driving west on Kinkaid Street. Mills initially continued to run back and forth between Gooding's car and the easement, but then he started walking away--" kind of cooling down."
At this point, Gooding said that she pulled up a little behind Mills and again told him to come on and get in the car. Gooding was in the driver's seat with her left hand on the steering wheel and her right hand extended out toward Mills. She was leaning toward the passenger's side window in order to see Mills' face. Gooding testified: " When I was sitting like this and I was leaning in, my whole body shifted towards [Mills] and my foot accidentally pressed on the accelerator and my left hand went towards [Mills]." Gooding testified that she accidently hit Mills with the car.
The State provided a different account, based on the eyewitness testimony of D'Andre Thomas. Thomas was the driver of the SUV that drove eastward on Kinkaid Street past Gooding and Mills while Gooding's car was stopped at the intersection of Santa Fe and Kinkaid Street. As Thomas approached the intersection, he saw a man standing outside of a car on the grass waving both of his hands. Thomas testified that the man " [l]ooked like he was arguing with somebody inside the car."
As Thomas drove closer, he saw that there was a woman inside the car. The man was standing away from the car, but he was talking to the woman through the passenger's side window. As Thomas approached, he saw the woman " swing the car" like she was trying to hit the man on the grass. The car " made a quick swing as if it was going to jump the curb right there where he was." However, the car did not jump the curb at that point. When the car made the jerking motion, the man jumped back further onto the grass.
Thomas continued to watch through his rearview mirror as he drove east on Kinkaid Street. The car at the intersection stopped for a moment, and the man turned around and started walking west on Kinkaid Street. The car turned west onto Kinkaid Street and started following the man as he walked on the grass. Thomas said the man never stepped into the street and he did not appear
to be communicating with the woman in the car. Thomas testified that the man " was just walking like he was trying to get away from [the car]." According to Thomas, the car slowly followed the man before it sped up, jumped the curb, and hit him. The man flipped into the air and onto the car before rolling off into the ...