BY THE COURT
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.
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.
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.
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.
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
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.
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.
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.
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."
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.
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
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.