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State v. Ruiz-Ascencio

Supreme Court of Kansas

December 15, 2017

State of Kansas, Appellee,
Gabino Ruiz-Ascencio, Appellant.


         1. Whether a jury instruction was factually appropriate depends on whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction.

         2. A key element of voluntary manslaughter is provocation sufficient to cause an ordinary person to lose control of his or her actions and reason. Mere words or gestures do not constitute legally sufficient provocation.

         3. An illegal sentence under K.S.A. 22-3504 is one that is imposed by a court without jurisdiction; does not conform to the statutory provision, either in the character or the term of authorized punishment; or is ambiguous with respect to the time and manner in which it is to be served.

         Appeal from Lyon District Court; W. Lee Fowler, judge.

          Richard W. Johnson, of Kansas City, Missouri, argued the cause, and Vincent Rivera, of Olathe, was with him on the brief for appellant.

          Jonathon L. Noble, assistant county attorney, argued the cause, and Amy L. Aranda, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.


          ROSEN, J.

         Gabino Ruiz-Ascencio appeals from his convictions for attempted first-degree murder, first-degree murder, aggravated assault, and illegal use of a communication facility. He argues that the district court erred when it did not instruct the jury on voluntary manslaughter and that it imposed illegal sentences when it ordered lifetime postrelease supervision. We affirm his convictions but vacate the portion of his sentence imposing lifetime postrelease supervision and remand for resentencing.


         The convictions in this case stem from two separate events. The first occurred on March 31, 2013. Sometime in the evening on that date, Ruiz-Ascencio went to the home of Maria Aldrete in Emporia, Kansas. Ruiz-Ascencio was looking for a man named Michael Koy, who had once lived at Aldrete's house. A.N., Aldrete's 11-year-old son, was home that evening and answered the door. Ruiz-Ascencio asked for Koy. When A.N. replied that Koy was not there, Ruiz-Ascencio pointed a gun at A.N.'s head and told him to tell Koy that Ruiz-Ascencio was looking for him. This encounter resulted in Ruiz-Ascencio's aggravated assault conviction.

         The second event occurred a few weeks later. Late in the night on April 12, 2013, Chris Van Tassel, Aaron Gurley, and Adrian Peralta were driving around together and looking for drugs. The three men eventually went back to Van Tassel's house, where Gurley told the two others that he could contact Ruiz-Ascencio, who might have some drugs. Van Tassel testified that Peralta indicated he did not get along with Ruiz-Ascencio. Gurley testified that Peralta said he had "to clear a few things up" with Ruiz-Ascencio due to a previous confrontation between Ruiz-Ascencio and Koy. Van Tassel and Gurley told Peralta to avoid saying anything about the two of them to Ruiz-Ascencio. Then Gurley contacted Ruiz-Ascencio on his phone via Facebook Messenger and asked if he had any cocaine. Ruiz-Ascencio sent a message back, indicated that he did have cocaine, and showed up at Van Tassel's house soon after.

         Van Tassel testified that when Ruiz-Ascencio arrived, Peralta called Koy and asked if he was "ready to hook 'em up." Ruiz-Ascencio, Gurley, and Peralta then each snorted some of Ruiz-Ascencio's cocaine. Van Tassel stated that Ruiz-Ascencio and Peralta then began discussing the conflict between the two of them and that things did not "feel right." Van Tassel felt like "[s]omething was simmering" between Peralta and Ruiz-Ascencio, so he asked everyone to leave. Gurley testified that Van Tassel asked them all to leave because he did not like that Ruiz-Ascencio had a gun.

         Gurley, Peralta, and Ruiz-Ascencio left Van Tassel's house and went to Gurley's residence. Koy was living with Gurley at the time. Peralta yelled for Koy to come outside. Koy came out and stood in the back yard with the three other men. Koy's girlfriend, Alice Garcia, who was also at the house, came and stood at the back door. After Koy came outside, Ruiz-Ascencio pulled a pistol from his waistline. Gurley testified that Ruiz-Ascencio pointed the pistol at Peralta while the following exchange took place: Peralta told Ruiz-Ascencio that Ruiz-Ascencio had been "saying you want to fight [Koy] all night . . . here he is" and Ruiz-Ascencio replied "I'm not fighting anymore. I'm done fighting." Peralta then told Ruiz-Ascencio that he should not have brought a gun and said "I'm not afraid of death. I invite it."

         Gurley then turned to go back in his house. When he did, he heard eight back-to-back gun shots. Gurley ducked inside and eventually heard a car screeching away. Koy came into the house with a gunshot wound to the leg. Gurley ran outside to see if Peralta had also been shot. Peralta was lying on the ground with a gunshot wound and yelling "[h]e shot me." Peralta later died of complications from the gunshot wounds. Garcia corroborated much of this testimony. She testified that Ruiz-Ascencio indicated he did not want to fight and then pulled out a handgun and fired eight times, hitting Koy in the leg and Peralta in the abdomen.

         A jury convicted Ruiz-Ascencio of attempted first-degree murder for the shooting of Koy, first-degree murder for the death of Peralta, aggravated assault for his encounter with A.N., and illegal use of a communication facility for using his cell phone in the commission of cocaine distribution. The district court sentenced Ruiz-Ascencio to 272 months for the attempted first-degree murder, 12 months for the aggravated assault, and 8 months for the use of a communication facility, to be served concurrently, and life in prison with a hard 25 for the first-degree murder, to be served consecutively to the sentence for the attempted murder conviction. The district court imposed lifetime postrelease supervision on all four counts.

         Ruiz-Ascencio presents two issues in his appeal: (1) the district court erred in denying his request to instruct the jury on voluntary manslaughter for the first-degree murder and attempted first-degree murder charges; and (2) the district court erred in sentencing him to lifetime postrelease supervision on each count.


         Voluntary ...

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