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State v. Gentry

Supreme Court of Kansas

September 20, 2019

State of Kansas, Appellee,
Stephen A. Gentry, Appellant.


         1. An aider or abettor cannot be guilty of a crime if the primary actor did not have the requisite mental state of the crime.

         2. Attempted unintentional but reckless second-degree murder and attempted reckless involuntary manslaughter are not recognized offenses in Kansas.

         3. Under K.S.A. 2018 Supp. 21-5202(c), the State can establish that a defendant acted recklessly if it proves that the defendant acted knowingly or intentionally. But the statute does not create logically impossible criminal offenses.

          Appeal from Saline District Court; Rene S. Young, judge.

          Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

          Ellen Hurst Mitchell, county attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.


          ROSEN, J.

         A jury convicted Stephen Gentry of first-degree murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. We affirm Gentry's convictions but vacate in part the restitution order.

         Factual and Procedural Background

         Gentry's convictions arose from a shooting that occurred late in the evening on May 6, 2015, resulting in the death of A.S. The events that led to the shooting began a day earlier. On May 5, 2015, Gentry lived with his girlfriend, Kaylee Ovalle. That evening, Ovalle called the police after having an altercation with Gentry. When an officer responded to the call, Gentry was gone, and attempts to locate Gentry failed. Ovalle stayed with her grandmother that night.

         Earlier on May 6, 2015, Ovalle contacted her mother, Amber Ovalle, and asked her to help collect some of Ovalle's belongings from the apartment. Amber's boyfriend, Chad Bennett, and Bennett's coworker, Anthony Darby, agreed to accompany them. Around 5 p.m., Bennett picked up Amber and Darby and drove to Ovalle and Gentry's apartment. Bennett was driving a green Dodge pickup truck. This truck belonged to Amber's father, but, in May of 2016, Ovalle usually drove the truck. Ovalle was at the apartment getting her clothes and other things together when Bennett, Darby, and Amber arrived.

         Around the same time that day, Gentry was with his friend Daniel Sims in Sims' apartment, which was across the hall from the apartment Gentry and Ovalle shared. A friend of Gentry's, Andrew Woodring, showed up at Sims' apartment. Macio Palacio, who was a friend of Woodring's, and Palacio's girlfriend, Azucena Garcia-Ferniza, were with Woodring. While they were all at Sims' apartment, Palacio showed Woodring and Gentry a gun. At trial, Sims would describe it as a "Glock .45." After about 30 minutes, Woodring, Palacio, and Garcia-Ferniza left Sims' apartment. After they left, Gentry and Sims went across the street to a Kwik Shop. They stayed there for 10 to 15 minutes and then left to return to the apartment complex.

         Bennett and Darby were standing outside of Ovalle and Gentry's apartment when Gentry and Sims returned from the Kwik Shop. The men yelled at each other and eventually Darby hit Gentry in the face and broke Gentry's glasses. They separated and Bennett, Darby, Amber, and Ovalle left in the green pickup truck.

         After the altercation, Gentry and Sims went to Jerome Forbes' apartment. Forbes and his girlfriend were both at the apartment. Gentry was upset about getting hit in the face. He called Woodring and told him he wanted to get revenge and asked him to come over and bring Palacio's gun. Gentry would later tell detectives that he wanted the gun there because, during a fight, there is always someone who stands in the back with a gun. According to Gentry, this way your adversaries know that if they pull out a gun, the other side will also pull out a gun. Gentry stated that "the only way it would have turned into a gun fight is if they pulled one out and fired." Gentry said that this is basic knowledge, but since he did not know Palacio, he could not confirm that Palacio knew that he was just supposed to stand guard with a gun.

         While the men were waiting for Woodring to arrive, they discussed jumping Bennett and Darby and whether they would bring rolls of quarters or a baseball bat to the fight. Sims would later testify that when Woodring and Palacio arrived, he saw the bulge of a handgun in Palacio's waistband and, regarding the handgun, Palacio told Gentry, "I got that." According to Sims, Gentry replied, "Okay." Gentry would later tell detectives that Palacio did not take out his gun but that he knew Palacio had the gun. Gentry told Palacio and Woodring that three or four individuals jumped him and that he wanted to go to Amber and Bennett's house to fight them. He said that no one had to go with him, but Sims, Forbes, Palacio, and Woodring all left the apartment with Gentry. Woodring drove. Sims would later testify at trial that fighting "was the goal, plan of that night."

         Gentry directed Woodring to the house where Amber and Bennett lived. During the drive, Gentry was still angry and said that he was not going to let "[t]hem get away with hitting him in the face." Gentry told Woodring to park the car a block away so that no one would see their car. The five men got out and walked toward Amber and Bennett's house. When they saw that no lights were on in the house, they determined no one was home and began to walk back to the car.

         Gentry generally agrees with the facts up to this point. From here, Sims' and Gentry's stories diverge. Sims testified for the State and confirmed that the charges against him had been reduced to involuntary manslaughter in exchange for his testimony. Sims testified that when they got back to the car, the following events took place: Gentry was telling the men that he wanted to wait for Bennett and Darby to come to the house when they all noticed a truck driving down the road toward them. Woodring was standing in the street by the driver's side of the car, and Sims, Forbes, Palacio, and Gentry were standing on the passenger side of the car in the grass. Gentry said they should wait and see what the truck was going to do. The street was dark, but Sims saw two people in the truck. The truck slowed down as it passed by the men standing by the car because the street was narrow. When the truck was 5 to 10 feet beyond the men, Gentry commanded Palacio to shoot. Palacio stepped into the street and started shooting as Gentry got into the car. Sims heard five shots and then ran. Forbes followed him.

         Gentry described the event differently. In two video-recorded interviews with detectives, Gentry stated that after he and the other men returned to the car, he climbed into the back seat by himself because Forbes and Sims had decided to walk home. Gentry then saw headlights coming toward the car. Someone told him that it was a truck. When the truck got closer, Gentry saw that is was not the truck that Ovalle drove. Gentry told Woodring and Palacio that it was "not the truck, " but Woodring insisted that it was. Palacio, who had been about to get into the passenger's seat, stepped away from the car and toward the street. He asked Gentry if that was "the truck, " and Gentry replied that it was not the truck. After the truck passed the men, Palacio asked Woodring if it was the truck and Woodring said that it was. Palacio then pulled out his gun and started shooting. Woodring then drove Palacio and Gentry to one of Woodring's friend's houses, and the three men separated.

         Vince Johnson was driving the truck that drove past the men that evening. Johnson's girlfriend, A.S., was in the passenger seat of the truck. About 15 to 20 seconds after Johnson passed the car, he heard four to six gunshots and sped up. After driving away from the gunshots, he stopped the truck and noticed that A.S. had been hit. A.S. was transported to the hospital and died shortly after midnight on May 7, 2015.

         Someone called the police at 9:27 p.m. on May 6, 2015, in regard to shots fired in the area where Woodring had parked the car. When the police investigated, they found five spent shell casings in the street. Johnson's truck had projectile holes in the tailgate and in the upper right-hand side of the back of the truck. The back window was shattered, and there was a bullet hole through the front passenger side headrest and a .45 caliber round on the dash.

         The police eventually searched Palacio's home and found a Glock 30 semiautomatic .45 caliber handgun in the possession of Garcia-Ferniza. A firearm and tool mark examiner from the Sedgwick County crime lab would testify at trial that it was his opinion the fired bullet found in the dash of Johnson's truck and the fired cartridge cases found in the street were fired from that gun.

         On May 11, 2015, the State charged Gentry with first-degree murder for the death of A.S., attempted first-degree murder for attempting to kill Johnson, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. The State also charged Sims, Palacio, Forbes, Woodring, and Garcia-Ferniza in separate cases in connection with the events surrounding A.S.'s death.

         Gentry's trial was scheduled for April 11, 2016. On March 25, 2016, Gentry moved for a continuance. He asserted that Palacio had retained a firearms expert who had not yet finished his report. Gentry wanted a continuance so he could depose and possibly retain the expert. The district court denied the motion and the case proceeded to trial.

         At trial, the State conceded that Palacio fired the gun that killed A.S., but it argued that Gentry aided or abetted him by planning and fueling the entire encounter and directing Palacio to shoot. The State theorized that Gentry wanted to kill someone as revenge for being punched in the face.

         The district court instructed the jury on two different theories of first-degree murder: premeditated and felony murder. It instructed the jury to consider intentional second-degree murder if it did not find Gentry guilty of first-degree murder. Regarding the attempted murder charge, the district court instructed the jury to consider attempted intentional second-degree murder if it did not find Gentry guilty of attempted first-degree murder. Finally, the court instructed the jury on aiding and abetting and transferred intent.

         The jury found Gentry guilty of all charges. While it unanimously agreed he was guilty of first-degree murder, it could not unanimously agree whether Gentry committed premeditated murder or felony murder. The jury checked a box on the verdict form allowing it to convict Gentry of first-degree murder although it did not agree on the underlying theory. Facts relating to the first-degree murder instruction and verdict form will be discussed in greater detail in the analysis of issues underlying the murder conviction.

         After the jury returned its verdict, the State moved for restitution. The State asked for $3, 642.05 for "trial preparation expense [and] witness expense" and $5, 406.72 for "the Kansas Crime victim payment for medical and counseling for the parents."

         The district court imposed a sentence of life imprisonment with a minimum of 25 years for the first-degree murder conviction, 253 months of imprisonment for the attempted first-degree murder conviction, 59 months of imprisonment for the criminal discharge of a weapon at an occupied vehicle conviction, and 6 months of imprisonment for the conspiracy to commit aggravated battery conviction. All sentences were to run consecutive, except for the 59 months, which would run concurrent to all other sentences. The court found that the offense was committed with a deadly weapon and ordered Gentry to register as a violent offender for a period of 15 years. Finally, the court ordered him to pay all of the requested restitution.

         Gentry appealed to this court.


         Statutory error in jury instructions

         Gentry claims that the district court made a statutory error when it did not offer certain lesser included offense instructions on the first-degree murder charge and the attempted first-degree murder charge.

         We review alleged instruction errors in a number of steps.

"We must first decide whether the issue has been preserved. Second, we analyze whether an error occurred. This requires a determination of whether the instruction was legally and factually appropriate. We exercise unlimited review of those questions. Next, if we find error, we conduct a 'reversibility inquiry.'" State v. Williams, 308 Kan. 1439, 1451, 430 P.3d 448 (2018) (quoting State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195');">286 P.3d 195 [2012]).

         The standard for the reversibility inquiry depends on whether the instruction was properly requested in district court. If it was requested, the failure to offer it to the jury is grounds for reversal unless the State shows there is no reasonable probability the absence of the error would have changed the jury's verdict. State v. Barrett, 309 Kan. 1029, 1037, 442 P.3d 492, 498 (2019); State v. Louis, 305 Kan. 453, 457, 384 P.3d 1 (2016). If the instruction was not requested, this court applies a clear error standard to the reversibility inquiry. "Under that standard, an appellate court assesses whether it is 'firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.'" Williams, 308 Kan. at 1451 (quoting Williams, 295 Kan. at 516). The burden to establish clear error is on the defendant. In examining whether a party has met its burden, we consider the entire record de novo. See Williams, 308 Kan. at 1451.

         Lesser included offense instructions for first-degree murder charge

         At trial, the district court instructed the jury that it could find Gentry guilty of first-degree murder if the State showed that Gentry committed premeditated murder or felony murder, or both. It also instructed the jury that it could find him guilty of intentional second-degree murder if it did not find him guilty of first-degree murder. Gentry argues that it erred when it did not also instruct the jury on unintentional but reckless second-degree murder, reckless involuntary manslaughter, and voluntary manslaughter.

         Gentry requested these instructions in the district court. Consequently, they were properly preserved ...

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