BY THE COURT
aider or abettor cannot be guilty of a crime if the primary
actor did not have the requisite mental state of the crime.
Attempted unintentional but reckless second-degree murder and
attempted reckless involuntary manslaughter are not
recognized offenses in Kansas.
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.
from Saline District Court; Rene S. Young, judge.
Maharry, of Kansas Appellate Defender Office, argued the
cause and was on the briefs for appellant.
Hurst Mitchell, county attorney, argued the cause, and Derek
Schmidt, attorney general, was with her on the brief for
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.
and Procedural Background
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.
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
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.
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
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.
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."
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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."
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
appealed to this court.
error in jury instructions
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
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 ).
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.
included offense instructions for first-degree murder
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.
requested these instructions in the district court.
Consequently, they were properly preserved ...