State
v.
Nelson

Not overruled or negatively treated on appealinfoCoverage
Court of Appeals of Kansas.May 18, 2012
No. 104,070. (Kan. Ct. App. 2012)
No. 104,070.276 P.3d 837

No. 104,070.

2012-05-18

STATE of Kansas, Appellee, v. Cameron NELSON, Appellant.

Appeal from Saline District Court; Daniel L. Hebert, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Saline District Court; Daniel L. Hebert, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN and BUSER, JJ.


MEMORANDUM OPINION


PIERRON, J.


After two hung jury trials, a third jury convicted Cameron Nelson of second-degree unintentional murder and criminal possession of a firearm. Nelson asks for a reversal of his convictions based on alleged insufficiency of the evidence to support unintentional/reckless murder, the admission of evidence of a prior shooting, the admission of photos and a list of cell phone contacts, alleged prosecutorial misconduct, and cumulative error.

The impetus for the events leading to the death of Mark Simpson began weeks earlier at a Salina nightclub called The Groove. Kendral Carter and his cousin Jason Hartfield were involved in a fight with Kash Wilson in the parking lot behind The Groove. Wilson sustained injuries in the fight requiring hospital treatment.

On April 15, 2008, a party started at the apartment shared by Charles Colvin and Chris Barr. The partygoers, including Simpson, Nate Ervin, and Jason Crank, were drinking alcohol and using illegal drugs. Colvin testified he had been trying to contact Otis Jones, Jr., throughout the evening to purchase more cocaine, but he had been unable to reach him. Ervin, Simpson, and Crank continued to party at a local bar and then around 2 a.m. drove to Jones residence at 545 S. 10th in Salina in search of more cocaine. When they arrived, Crank went to the front door, while Ervin and Simpson remained in or near the street. Crank testified he heard a gunshot and “hunkered down” for a minute trying to protect himself. He said he tried to get into the house for safety, but no one would open the door.

Crank testified that when he finally looked, he saw Ervin near Simpson, who was lying on the street. He then saw Ervin run to the car and drive away. Crank attempted to assist Simpson and remained at the scene until police arrived. Based on Ervin's actions, Crank told the police he thought Ervin shot Simpson. Ervin was arrested for Simpson's death, but the charges were not pursued.

Carter was at his uncle's house at 545 S. 10th. There were many relatives there. Carter testified he was on the porch when he saw a four-door silver car parked near the driveway. Lauren Berry told him the car kept stopping in front of the house and then leaving. Carter said he did not recognize the car. Carter said that later there were knocks at the door, but no one was there when he answered it. Carter testified he heard honking and gun shots and then received a phone call from Berry who said there were three men on the porch with guns. Sometime after Berry's phone call, Carter said he heard voices outside, opened the door, and saw “a white guy and a couple other guys.” He told them to get out of the yard, and he went back inside.

When Carter looked out the window again, the three men were still there. He saw a white four-door car parked in the street. When he stepped out onto the porch, Carter saw the silver car from earlier in the evening pass by the house again. Simpson was standing in street and the silver car had to swerve to miss Simpson and then almost hit Ervin. The driver of the silver car slammed on its breaks and Ervin threw his hands up. Carter said a gun shot came from a passenger side window, but he could not tell whether it was from the back or the front. Carter went back inside and when he heard voices again, he opened the door and saw Ervin and Crank trying to help Simpson, who was lying in the street. He said that Crank asked him for help and Ervin drove away.

The State's key witness was Clifford Bunville. Bunville testified he had loaned his silver Alero to Nelson, Wilson, and Jared Veal on the night in question. They asked Bunville to go with them to fight Jason Hartfield—Wilson drove, Nelson was in the front passenger seat, Veal was behind the driver, and Bunville was behind Nelson. Bunville said that as they turned onto 10th, a white car was stopping at 545 S. 10th, so they drove around the block. The conversation in Bunville's car turned to whether the people in the street were associates of Hartfield. They turned onto 10th for another pass at 545 S. 10th. Bunville testified that as they passed the residence, they bumped Simpson with the car and he saw Simpson stumble. Simpson began approaching the front passenger window. Bunville saw Nelson put his arm out of the front window and shoot Simpson. Bunville testified that Nelson and Kash discussed disposing of the gun.

Lauren Berry testified she was living at 545 S. 10th on April 16, 2008. Berry's friend Jana Crawford was visiting her that evening. They saw a silver car parked in front of the house, but it drove off when they approached it. Later, Crawford and Berry went to get something to eat with their children, and the silver car was still there when they returned. They tried to talk to the passengers but got no response. They had some of the men inside the house come out onto the porch to talk to the passengers, but there was still no answer. Berry said as they went back inside, someone in the passenger seat pointed a gun at her.

After there were several knocks at the front door and no one was there when they answered the door, Berry and Crawford decided to take their children somewhere safer. They saw the silver car parked down the street. Berry testified that when they returned, they saw two men on the porch and one man in the yard. One of the men had a gun so Berry started honking her horn. The men ran away down an alley, and the women followed in their car. Crawford did not know any of the men, but Berry recognized one of them as Wilson. The women decided not to go any farther down the alley, but they then saw the men running toward them, saw flashes of light, and heard gunshots. The women sped away. They stopped in a lighted parking lot nearby and found no bullet holes in the car.

During a search of Nelson's home, officers discovered a black safe that contained a partial package of .45 caliber ammunition, a large amount of cash, and multiple documents addressed to Nelson. Thomas Price, a firearm forensic expert, testified that the spent cartridge casings found in the alley near 545 S. 10th and the casing found near Simpson's body were all .45 caliber and were all fired from the same firearm.

The State initially charged Nelson with intentional first-degree murder. The charges were later amended to intentional second-degree murder. The defense's theory was that someone else had shot Simpson—most likely Ervin; the State could not place Nelson as the shooter; there was no evidence that Simpson died from a .45 caliber bullet; there was no evidence that the bullet that killed Simpson came from Nelson's gun; the State could not present the gun used in the shooting; and any revenge for the fight at the Groove was personal to Wilson, not Nelson.

Nelson's case consumed three separate, lengthy trials in December 2008, April 2009, and September 2009. His first trial ended in a hung jury. Before the second trial, the State added a charge of criminal possession of a firearm. At the second trial, the trial court instructed the jury on the lesser included offenses of unintentional reckless second-degree murder and involuntary manslaughter. The jury was unable to reach a verdict in the second trial as well and, the court was forced to declare a another mistrial.

After a third trial, a jury convicted Nelson of the lesser offense of unintentional reckless second-degree murder and criminal possession of a firearm. Nelson filed a motion to set aside his convictions or in the alternative to consider a new trial. He alleged the State had committed prosecutorial misconduct by withholding information about a deal the State had with Bunville concerning Bunville's prosecution in an unrelated case. As will be discussed more thoroughly below, the trial court denied the motion finding there was no prosecutorial misconduct or withholding of information. Nelson was successful in gaining leniency at sentencing.

Nelson has a lengthy criminal history that resulted in a large presumptive sentence. With a criminal history score of A, his presumptive sentencing range was 442–467–493. The trial court granted Nelson's request for a downward durational departure and sentenced him to 300 months' imprisonment for unintentional second-degree murder and a concurrent sentence of 8 months' imprisonment for criminal possession of a firearm. The court granted the departure for the following reasons: “[Nelson] is immature and impulsive and his lack of responsibility is more than teenage rebellion in this case. [Nelson's] young age and lack of family support and direction. [Nelson's] incarceration for 44–45 years is possible waste of life that could be rehabilitated.”

Nelson first argues there was insufficient evidence to convict him of the lesser included offense of unintentional second-degree murder. He contends the State failed to present any evidence that he had killed Simpson “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” Nelson argues all the evidence presented by the State demonstrated intentional conduct—thus, he is entitled to a reversal of his reckless second-degree murder conviction;

Our current standards for challenges to the sufficiency of the evidence in a criminal case are well established and well tested. When the sufficiency of the evidence is challenged in a criminal case, we review all the evidence, viewed in the light most favorable to the prosecution, to determine whether the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009). But, Nelson's challenge to the sufficiency of the evidence misses a critical point of procedure involving challenges to the jury instructions.

The critical twist focuses on Nelson's failure to challenge the jury instruction for which he now argues there is insufficient evidence to support a conviction. A trial court must instruct the jury on a lesser included offense where there is some evidence which would reasonably justify a conviction of the lesser offense. See K.S.A. 22–3414(3). The duty to so instruct arises only where there is evidence supporting the lesser crime. See State v. White, 284 Kan. 333, 347, 161 P.3d 208 (2007); accord State v. Pham, 281 Kan. 1227, Syl. ¶ 22, 136 P.3d 919 (2006) (“The instruction need not have been given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense.”).

In the first trial, the jury received no lesser included offense instructions. Defense counsel requested instructions on lesser included offense instructions for voluntary manslaughter and involuntary manslaughter, but the trial judge denied the request stating, “I don't think there is a lesser included of second degree under the circumstances here. The State hasn't pled reckless so there's no reckless.” In the second trial, the trial court sua sponte added the lesser included instructions for unintentional reckless murder in the second degree and involuntary manslaughter. At the instructions conference defense counsel stated, “And then the other question I have is at the first trial we had requested the lesser included and that was denied. We don't object to the lesser-includeds being given and was wondering what the change was that now they are.” The trial judge responded, “I don't know. This is a new trial and based on the evidence that was given and presented I think they're appropriate.” In the third trial, the trial court gave the same instructions as used in the second trial. Defense counsel had no objection to the jury instructions in the third trial.

Nelson's argument is based on a myriad of cases where the Kansas appellate courts have held that the evidence did not warrant a lesser included offense instruction on unintentional reckless second-degree murder. See State v. Martinez, 288 Kan. 443, 452–53, 204 P.3d 601 (2009); State v. Davis, 283 Kan. 569, 158 P .3d 317 (2006); State v. Cavaness, 278 Kan. 469, 472–77, 101 P.3d 717 (2004); State v. Jones, 267 Kan. 627, 629–33, 984 P.2d 132 (1999); State v. Bailey, 263 Kan. 685, 688–91, 952 P.2d 1289 (1998); State v. Robinson, 261 Kan. 865, 881–83, 934 P.2d 38 (1997); State v. Pierce, 260 Kan. 859, 865–67, 927 P.2d 929 (1996); State v. Deal, 41 Kan.App.2d 866, 872–78, 206 P.3d 529 (2009), aff'd293 Kan. 872, 269 P.3d 1282 (2012); State v. Jones, 27 Kan.App.2d 910, 914–15, 8 P.3d 1282 (2000). But, the above cases do not provide an equal posture because they do not address a situation where a defendant is challenging the sufficiency of a conviction for unintentional reckless second-degree murder when the defendant failed to object to the court actually giving the lesser included instruction in the first place.

K.S.A. 22–3414(3) provides:

“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” (Emphasis added.)
The above emphasized language was added by the legislature in 1998. See L.1998, ch. 185, sec. 3.


The case of State v. Cordray, 277 Kan. 43, 82 P.3d 503 (2004), sets the back drop for our invited error analysis in Nelson's case. Cordray was convicted of one count of reckless second-degree murder and two counts of attempted second-degree murder. On appeal, Cordray argued that the district court's instructing the jury on lesser included offenses, over Cordray's objection, deprived him of a fair trial by precluding an all-or-nothing defense. In rejecting Cordray's argument, our Supreme Court stated: “Neither the case law nor statutes relied on by Cordray support a determination that a criminal defendant has a right to an all-or-nothing defense.” 277 Kan. at 55. Citing K.S.A. 22–3414(3), the Cordray court concluded: “A trial judge has the affirmative duty to instruct the jury on all lesser offenses when the evidence introduced at the trial is such that the defendant might reasonably be convicted of a lesser offense.” 277 Kan. 43, Syl. ¶ 6. While Cordray is not factually on point, it provided the authority for our next case.

In State v. Angelo, 287 Kan. 262, 197 P.3d 337 (2008), Angelo cited Cordray in support of his argument that the trial court should have given a second-degree murder instruction over his objection. He claimed that Cordray reaffirmed the obligation of the trial court to instruct on lesser included offenses when supported by the evidence, “regardless of the defendant's wishes.” See Cordray, 277 Kan. at 53–55. Angelo argued he could appeal the court's failure to instruct on lesser included crimes, and the issue should be analyzed as one in which he simply made no objection to the court's decision not to instruct, i.e., whether the failure was clearly erroneous. See K.S.A. 22–3414(3). In Angelo, however, the trial court acceded to Angelo's request and did not give the second-degree murder instruction. “In short, Angelo invited this error.” 287 Kan. at 280.

Recently, our court affirmed this type of invited error analysis for jury instructions requested by the defendant in a case of alternative means of committing aggravated sodomy. Citing Angelo as authority, this court in State v. Schreiner, 46 Kan.App.2d 775, 788–89, 264 P.3d 1033 (2011), pet. for rev. filed December 5, 2011 (pending), held:

“The Angelo decision is particularly instructive in demonstrating the efficacy of the invited error doctrine regarding jury instructions. In that case, Angelo was charged with first-degree murder. Although there was evidence to support instructing the jury on second-degree murder as a lesser included offense, Angelo specifically requested the trial court refrain from doing so. Angelo wanted the jury to face an all-or-nothing decision between first-degree murder and acquittal with no room to compromise on a lesser, though still serious, offense. While the district court obliged Angelo, the jury did not. On appeal, Angelo argued that the district court committed reversible error in failing to instruct on a proper lesser included offense even though he received the very jury instructions he requested at trial. He pointed out that K.S.A. 22–3414(3) requires district courts to instruct on lesser included offenses supported in the evidence. The Kansas Supreme Court rejected the argument, since ‘Angelo invited this error.’ 287 Kan. at 280. The court then cited the general rule: ‘A litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal.’ 287 Kan. at 280.”


We agree that a litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal. K.S.A. 22–3414(3) expressly requires an objection as a prerequisite to challenge the giving of an instruction on appeal. Defense counsel's request for lesser included instructions was denied in the first trial. And, defense counsel agreed with and/or failed to object to the instructions given to the jury at Nelson's next two trials. Nelson cannot now challenge the sufficiency of a conviction under one of the lesser included crimes. In short, Nelson invited this error. See State v. Murray, 285 Kan. 503, 522, 174 P.3d 407 (2008); State v. Kirtdoll, 281 Kan. 1138, 1150, 136 P.3d 417 (2006) (applying invited error rule to reject appellant's claim that instruction was clearly erroneous).

Nelson correctly argues that the State's theory was the acts were intentional, not reckless, conduct. The State's argument on appeal is that recklessness could be derived when Nelson fired a gun from the window of a moving vehicle and it was for the jury to decide whether he intentionally had aimed the gun at Simpson or shot recklessly into the dark street where he knew people were standing. The State concludes it is equally plausible that Nelson knew Simpson was there and aimed at him as it is that Nelson just fired blindly into the street. Thus, the State contends the facts support a verdict of either intentional or unintentional second-degree murder and the jury settled on reckless conduct.

The most important fact concerning this issue is that Nelson invited the error for which he now appeals. Our perception in most criminal prosecutions is that defense counsel normally requests lesser included offense instructions for the opportunity of having the jury settle on a lesser crime resulting in a lesser punishment. Sometimes the evidence will not support the lesser offense; and where objected to by the State, the lesser is not given. But when the defense does not object to a lesser included instruction, a party who leads the court into error cannot complain about that issue on appeal—thus, invited error. See State v. McCoy, 34 Kan.App.2d 185, 190, 116 P.3d 48,rev. denied 280 Kan. 988 (2005) However, under K.S.A. 22–3414(3), it appears that even if, as here, the defendant does not object, the instruction can still be challenged if it is clearly erroneous.

The application of the invited error doctrine to jury instructions is widely recognized. See Maiz v. Virani, 253 F.3d 641, 677 (11th Cir.2001) (an erroneous instruction is not plain error if the defendant requested the instruction); Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir.1998) (the giving of a requested instruction precludes reversal of conviction and any habeas relief even if trial court erred in giving the instruction); United States v. Baytank (Houston), Inc., 934 F.2d 599, 607 (5th Cir.1991) (invited error doctrine is applicable to an instruction which results in conviction for a crime not charged in the indictment).

While not completely on point, in Angelo, 287 Kan. at 280, the court found the defendant was precluded by the doctrine of invited error from complaining about the lack of a lesser included offense instruction on appeal. The same can be said of a defendant's acquiescence in lesser included instructions. K.S.A. 22–3414(3) provides in part: “No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto....” (Emphasis added.) The statute expressly requires an objection as a prerequisite to challenge the giving of an instruction on appeal. Defense counsel agreed with and/or failed to object to the instructions given to the jury at all three of Nelson's trials. Nelson cannot now challenge the sufficiency of a conviction under one of the lesser included crimes that he did not object to. See K.S.A. 22–3414(3); Murray, 285 Kan. at 522;Kirtdoll, 281 Kan. at 1150, (applying invited error rule to reject appellant's claim that instruction was clearly erroneous where counsel “championed the use of the [challenged] instruction over the State's objection”).

It appears that under Kirtdoll and other cases cited above, the Supreme Court seems to say that if there is an affirmative championing of the instruction, the clearly erroneous standard will not be used. There does not appear to be a definite statement on mere silence by the defendant. Arguments raised by my colleagues in both the concurrence and dissent have been considered but do not change the analysis in the majority opinion on the issue of the lesser included instruction of reckless second-degree murder.

Nelson next contends the trial court abused its discretion by admitting evidence of the prior shooting involving Crawford and Berry to prove that Nelson was the shooter in the present case.

As a preliminary matter, the State contends Nelson failed to preserve this evidentiary issue for appeal by not objecting on K.S.A. 60–455 grounds during the trial for the reasons he now asserts on appeal. K.S.A. 60–404 provides that “a party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review.” State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009). The goal of the rule requiring a timely and specific objection is to give ‘ “ “the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial’ “ [Citations omitted.]” 288 Kan. at 342. Because an in limine ruling “is subject to change when the case unfolds,” Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), a pretrial objection must be contemporaneously renewed during trial or preserved through a standing objection. State v. Berriozabal, 291 Kan. 568, 580, 243 P.3d 352 (2010); King, 288 Kan. at 341–42 (timely and specific objection preserves issues related to admission of evidence for appeal). The parties argued the application of the K.S.A 60–455 at the first trial, so those issues have been raised and are discussed below.

Nelson appears to argue that the trial court's ultimate ruling in the third trial was that the evidence of the shooting involving Crawford and Barry was admitted as res gestae. The law in Kansas is clear that evidence of prior crimes or bad acts is not admissible as res gestae evidence independent of the procedural hurdles of K.S.A. 60–455. The court put an end to the practice of admission of other crimes and civil wrongs evidence independent of K.S.A. 60–in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). Res gestae and other means of independently admitting this type of evidence is “dead” in Kansas. 282 Kan. at 63.

Nelson contends the trial court erred in ruling that the evidence was res gestae and he deserves a new trial. Yet, despite its ruling, the trial court gave the limiting instruction for K.S.A. 60–455 evidence and the jury was specifically instructed that any other crimes evidence was only to be considered in proving motive, opportunity, intent, preparation, or identity. We can still decide that the trial court was right in admitting the evidence, just for the wrong reason. If a district court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. See Murray, 285 Kan. at 533.

As provided by K.S.A. 60–455, although evidence of prior crimes or civil wrongs cannot be admitted to prove a criminal defendant's propensity to commit the charged crime, it can be “ ‘admissible when relevant to prove some other material fact.’ “ State v. Garcia, 285 Kan. 1, 12, 169 P.3d 1069 (2007) (quoting K.S.A. 60–455). Several steps are required in determining whether evidence was properly admitted under the statute. See State v. Wells, 289 Kan. 1219, 1226–27, 221 P.3d 561 (2009).

We must determine that the fact to be proven is material, e.g., concerning intent, motive, knowledge, or identity. In other words, we must determine whether the fact “ ‘has a legitimate and effective bearing on the decision of the case.’ “ Garcia, 285 Kan. at 14. Our standard of review for materiality is de novo. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008).

We must also determine whether the material fact is disputed. Garcia, 285 Kan. at 14 (“ ‘[T]he element or elements being considered ... must be substantially at issue in the case.’ ”). We must also determine whether the evidence is relevant to prove the disputed material fact, i.e., whether it has any tendency in reason to prove that fact. K.S.A. 60–401(b); Reid, 286 Kan. at 505. We review relevance—in particular, the probative element of K .S.A. 60–455—for abuse of discretion. 286 Kan. at 507.

Next, we must next determine whether the probative value of the evidence outweighs the potential for producing undue prejudice. Reid, 286 Kan. at 503. Our standard for reviewing this determination is also abuse of discretion. Reid, 286 Kan. at 512. Finally, if the presented evidence meets all of these requirements, then the trial court must give a limiting instruction informing the jury of the specific purpose for admitting the evidence. State v. Hollingsworth, 289 Kan. 1250, 1258, 221 P.3d 1122 (2009).

When the trial court addressed this issue at the first trial, the court held that the evidence of the prior shooting was foundation evidence of a continuing sequence of events with little break between them. The court ruled that if the evidence was controlled by K.S.A. 60–455, then the evidence was admissible to show motive, opportunity, intent, and preparation. The original motion to admit the evidence at issue stated the following supporting evidence pursuant to K.S.A. 60–455:

“In support of the motion, it is stated that on April 6, 2008, Kashif Wilson was involved in an altercation near the Groove. Wilson sustained injuries and sought treatment at SRHC. The State contends Wilson sought revenge. Wilson learned that those involved in the previous altercation were staying at 545 S. 10th, Salina, KS the evening of April 15, 2008.


“Wilson borrowed a vehicle from Clifford Bunville and then was accompanied by Cameron Nelson and Jared Veal. They drove around and around the house at 545 S. 10th. They exited the vehicle and approached the residence and were on the front porch at one time. They were all three armed with a gun. The three continued to circle the residence and to park and watch the residence from nearby.


“At one point, one or all three of the group (Veal, Wilson, Nelson) fired shots at Jana Crawford and Lauren Barry who had been visiting at the residence. The shots were fired about 1:30–1:45 a.m.


“Wilson, Nelson and Veal returned to the Clifford Bunville residence. Bunville got in the car with the other three and returned to the residence to fight the people at 545 S. 10th who had been involved in the fight behind the Groove.


“Marc Simpson, Jason Crank and Nate Ervin arrived at 545 S. 10th sometime after 2:00 a.m. but before 2:30 a.m. Crank exited the car and went toward the residence. Simpson stood in the street. Bunville, Nelson, Veal and Wilson returned to the residence, drove by and came around a second time. Nelson leaned out the car window and shot Simpson.


“The State seeks to introduce this evidence to prove some material fact including motive, opportunity, intent, preparation, plan, absence of mistake or accident.”


When the trial court addressed the issue at the third trial, the court held the evidence of the prior shooting was necessary background and a necessary part of the offense alleged. The court gave the jury the general jury instruction on admission of 60–455 evidence for the purpose of proving motive, opportunity, intent, preparation, or identity. We find the trial court erred in instructing the jury that it could consider the prior shooting for purposes of intent and preparation because those factors were not material. All of the other 60–455 factors instructed by the trial court were properly given to the jury for its consideration of the evidence of the prior shooting. Motive

The Reid court explained that “motive is the moving power that impels one to action for a definite result.” 286 Kan. at 504, (citing State v. Jordan, 250 Kan. 180, 190, 825 P.2d 157 [1992] ). Evidence of motive is an attempt to explain why a defendant did what he or she did. See State v. Engelhardt, 280 Kan. 113, 128, 119 P.3d 1148 (2005). In Wells, 289 Kan. at 1229, the court stated:

“Prior bad acts have also typically been used to explain hostility between the victim and perpetrator as the motive for the crime. See State v. Tolson, 274 Kan. 558, 564, 56 P.3d 279 (2002) (‘An example of the proper admission of evidence of prior acts to show motive would be a showing of previous conduct that resulted in longstanding bad blood between an assailant and the victim he or she seeks out.’)(citing Jordan, 250 Kan. at 191).”
Here, the State painted this as a killing motivated by the revenge for an earlier fight. The prior shooting of Crawford and Berry, occurring within 30 minutes to 1 hour before Nelson shot Simpson, demonstrates the revenge motive. Crawford and Berry were coming in and out of the residence where the events of this case occurred and for which Nelson and the rest of his accomplices were stalking.
Opportunity

Opportunity is a material fact in Nelson's case because of the close connection of the shootings in both time and place. The Pattern Instructions discuss opportunity: “In order to introduce evidence of another crime to prove opportunity, the two crimes must be closely connected in time and place.” PIK Crim.3d 52.06, Comment II.C.(2). The timing and location of both of the shootings in Nelson's case are undisputed. Intent

Nelson argues that intent should not have been included in the instruction. “The crucial distinction ... [is] whether the defendant has claimed that his acts were innocent. Where criminal intent is obviously proved by the mere doing of an act, the introduction of other crimes evidence has no real probative value to prove intent.” State v. Graham, 244 Kan. 194, 198, 768 P.2d 259 (1989); see PIK Crim.3d 52.06, Comment ILC.(3) (“Intent becomes a matter substantially in issue when the commission of an act is admitted by the defendant and the act may be susceptible to two interpretations, one innocent and the other criminal.). In this case, Nelson did not testify at trial and there is no evidence that he claimed the shooting was innocent. Intent was not at issue. Preparation

Preparation consists of devising or arranging means or measures necessary to complete a crime. See State v. Grissom, 251 Kan. 851, 925, 840 P.2d 1142 (1992) (“The defendant's prior conduct in relationship to Katf [prior attack victim], specifically the master key and the pellet gun, is relevant to how he prepared to commit the crimes upon Bulter, Rusch, and Brown.”); State v. Marquez, 222 Kan. 441, 446, 565 P.2d 245 (1977). Here, the State does not really argue that the prior shooting was a step in preparing for the current crime. Rather, the State argues the similarities of Nelson patrolling the area of the residence in the same car, with the same two people, and armed with the same guns, was preparation for locating someone Nelson believed was associated with the individuals who had previously beaten Wilson. Therefore, preparation should not have been included in the jury instruction. Identity

In State v. Blackmore, 249 Kan. 668, Syl. ¶ 4, 822 P.2d 49 (1991), the court provided the following analysis for discussion of the identify factor in K.S.A. 60–455:

“Where a prior conviction is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the offense to raise a reasonable inference that the defendant committed both offenses. Similarity must be shown in order to establish relevancy. It is not sufficient simply to show that the offenses were violations of the same or similar statutes; there should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. However, the prior offenses need only be similar, not identical, in nature.”


The identity of the trigger man in both shootings was a highly disputed fact. Nelson clearly intended to present evidence that Ervin was the perpetrator of the crimes against Simpson. The first shooting being in the same area, by the same people, and in the same vehicle is clearly material to the identity of Simpson's shooter. The evidence obtained from the first shooting made it more likely that Nelson was the triggerman who killed Simpson.

We have reviewed the record and find the trial court erroneously included intent and preparation in its jury instruction for K.S.A. 60–455 evidence. As for the other factors—motive, opportunity, and identity—the requirements of materiality, disputed fact, and probative value outweighing undue prejudice are met. The court gave a limiting instruction to guide the jury's consideration of the evidence of the first shooting. We find the district court did not abuse its discretion in admitting evidence of the prior shooting and instructing the jury that it could consider this evidence for the purposes of the listed factors. The trial court's error in listing identity and preparation in the jury instruction was harmless. Citing prior caselaw, the court in State v. Boggs, 287 Kan. 298, 310, 197 P.3d 441 (2008), held: “[A] district court's admission of evidence under K.S.A. 60–455 may be upheld on review even if its rationale was in some way erroneous if an appellate court determines that the evidence was otherwise admissible under the statute. [Citations omitted.].”

Next, Nelson argues the trial court abused its discretion by admitting evidence of photos and Nelson's cell phone contact list.

When reviewing a district court's decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless statutorily prohibited. K.S.A. 60–407(f); State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60–401(b). There are two elements of relevant evidence: a materiality element and a probative element. State v. Houston, 289 Kan. 252, 261–62, 213 P.3d 728 (2009). Evidence is probative if it has “ ‘any tendency in reason to prove’ “ a fact. Reid, 286 Kan. at 505 (quoting K.S.A. 60–401[b] ). The issue of whether evidence is probative is reviewed under an abuse of discretion standard, whereas the materiality of evidence is reviewed de novo. Berriozabal, 291 Kan. at 586. However, even if evidence is both probative and material, the trial court must still determine whether the probative value of the evidence outweighs its potential for producing undue prejudice. Appellate courts review this determination for abuse of discretion. Wells, 289 Kan. at 1227.

Investigator Jeremy Watkins testified that he searched a residence where Nelson allegedly stayed. In the basement there was a shampoo bottle with Nelson's name on it. The residence contained a black safe with several documents addressed to Nelson. The safe also contained a partially filled box of .45 caliber ammunition. Defense counsel objected to the State's exhibit because it showed a rubber-banded stack of money in the safe next to the ammunition. The trial court denied the objection. Investigator Watkins discussed the photo of the safe for the jury and pointed out the ammunition and the correspondence addressed Nelson. The prosecutor asked, “And there's some money on that side of the safe as well?” Watkins answered, “Yeah, right there there's a bundle of money.” The prosecutor followed up, “And how much money was there?” Watkins responded, “There was approximately $2,000.

On cross-examination, defense counsel elicited information that Investigator Watkins dusted all the items in the safe for finger prints. Defense counsel continued to draw attention to the cash in the safe. She questioned Watkins whether the cash remained at the house. She inquired whether Watkins knew where the cash came from prior to its discovery during the search. The prosecutor did not follow up with any questions about the money during her redirect.

During closing argument, the prosecutor gave some relevancy to all the items (money, bank card, $2,000, ammunition, personal paper work) left by Nelson at the residence. The prosecutor argued that Nelson left all these items at home because he got out of town in a hurry after his picture and name were posted for being wanted in connection with Simpson's death. The prosecutor suggested that Nelson would not have travelled to Topeka to see his sister with a trash bag full of clothing that he had quickly gathered before he left if he truly planned a trip to see his sister. Defense counsel responded in closing argument that if Nelson truly knew about the items in the safe why did he not take them with him when he fled town—especially the money.

Keith Hall of the Federal Bureau of Investigation conducted a forensic examination on Nelson's cell phone. Hall prepared a report including the names and contacts in the cell phone. Defense counsel objected to admission of the contacts list because one of the contacts was entitled “attorney,” along with the phone number. Defense counsel argued the “attorney” contact suggested that Nelson needed an attorney's phone number because of his criminal background. On appeal Nelson argues that the “attorney” contact in conjunction with the cash in the safe was irrelevant and prejudicial leading the jury to conclude that he was a drug dealer.

Regarding the contact list on Nelson's phone, Nelson does not allege this evidence was ever pointed out to the jury. The State correctly points out that Nelson has failed to properly cite to the appellate record where this evidence was discussed at trial. “An appellant has the burden to designate a record sufficient to establish the claimed error; without such a record, the claim of error fails.” Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008); see Supreme Court Rule 6.02(d) and (e) (2010 Kan. Ct, R. Annot. 39) (material facts must be keyed to the record on appeal by volume and page number to make verification reasonably convenient; failure to do so will give rise to presumption of no support).

Nelson cites State v. Ward, 31 Kan.App.2d 284, 64 P.3d 972,rev. denied 276 Kan. 974 (2003), for authority evidence that he was a drug dealer was likely to convince the jury that he lived a violent lifestyle thus, making it more likely that he shot Simpson. The evidence challenged in Ward was evidence of actual drugs sales before and after the incidents where Ward sexually abused two girls. Nelson keys on language in Ward that “[b]y introducing evidence of the alleged drug transactions, the State planted the following, unfairly prejudicial seed in the minds of the jurors: If Ward is a drug dealer, he is a criminal and must be guilty of the crimes alleged in this case.” 31 Kan.App.2d at 289.

We are not presented with a Ward-type situation in this case. Nelson is not arguing actual evidence of drug transactions polluted the minds of the jurors. Instead, he is arguing the supposition that cash and a cell phone with an attorney's phone number in the contacts makes him a villainous drug dealer in the eyes of the jury. First, the issue of a large amount of cash was not the focus of the prosecutor's examination of the photograph, but simply an explanation of the items in the safe. It was defense counsel that drew the most attention to the cash by again focusing on it during cross-examination. As for the cell phone contacts, we find it a stretch of the imagination to argue that just because a defendant has an attorney's phone number in a cell phone contact list, the defendant is automatically branded as a criminal needing potentially immediate contact with an attorney. Further, neither counsel addressed the attorney contact, nor is there evidence the jury even considered the evidence. Nelson has not demonstrated any abuse of discretion in the admission of the evidence challenged on appeal.

Next, Nelson argues the State committed prosecutorial misconduct by withholding evidence of requests by Bunville's attorney and family for favorable treatment of Bunville if he testified at Nelson's trial.

Nelson argues the State failed to disclose to defense counsel that Bunville's family and Bunville's attorney had multiple contacts with the State seeking a reduction in charges or sentencing in exchange for his testimony against Nelson. Nelson maintains that given the extensive litigation concerning a “deal” he had with the State on his unrelated charges, the State should have known defense counsel would use the information to impeach Bunville's credibility at Nelson's trial.

The trial court rejected Nelson's motion for a new trial based on allegations the prosecutor withheld evidence of agreements between Bunville and the State in his unrelated criminal case. The trial court held:

“The issue of credibility of Mr. Bunville based upon alleged plea agreements. Once again Mr. Bunville was subjected to cross-examination on that score and at the third trial a fairly extensive cross-examination regarding that point. Mr. Bunville testified consistently that he did not know of any or did not have any plea agreement, his attorney, sworn and certified and licensed officer of the court, testified consistently that there was no such agreement. Mr. Bunville went to the police without even consulting with his attorney, never requested a deal and a prior plea agreement simply can't be established or implied from any renegotiation which occurred after the fact. There was simply in this case also enough evidence presented to the jury regarding the delay in sentencing and the nature of Mr. Bunville's crimes to—to impeach his credibility in that regard. The jury apparently chose to believe him. And the defendant has failed to establish any plea agreement or any prosecutorial misconduct which would warrant setting aside the conviction or ordering a new trial.”


The State correctly points out that this issue was not framed in terms of a Brady violation in the district court and, thus, constitutional grounds cannot be asserted for the first time on appeal. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Nelson admits as much. But he contends the record is sufficient to allow us to address the issue. The Brady issue was not raised below. Yet, examining the Brady issue is necessary to serve the ends of justice or to prevent the denial of fundamental rights if a constitutional violation is in fact proven. See Pierce v. Board of County Commissioners, 200 Kan. 74, 80–81, 434 P.2d 858 (1967) (three exceptions to the rule that constitutional grounds for reversal cannot be asserted for the first time on appeal).

In Brady, the Supreme Court held that prosecutors have a positive duty to disclose evidence favorable to the accused, when “the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87; accord State v. Francis, 282 Kan. 120, 150, 145 P.3d 48 (2006); see also In re Jordan, 278 Kan. 254, 261, 91 P.3d 1168 (2004) (discussing prosecutor's concurrent duty under Kansas Rule of Professional Conduct 3.8[d] ). A prosecutor's suppression of evidence favorable to the accused is a violation of a defendant's due process rights under the Fourteenth Amendment to the United States Constitution. Brady, 363 U.S. at 87;Francis, 282 Kan. at 150.

“There are ‘three components or essential elements of a Brady prosecutorial misconduct claim: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ “ [Citations omitted.]” Wilkins v. State, 286 Kan. 971, 989, 190 P.3d 957 (2008).


The failure to disclose favorable evidence warrants reversal only if the evidence is material. Evidence is material within the meaning of Brady only if a reasonable probability exists that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” in this context is a probability sufficient to undermine confidence in the outcome. Pacific Bell Telephone Co. v. Linkline Communications, Inc., 556 U.S. 449, 129 S.Ct. 1769, 1783, 173 L.Ed.2d 701 (2009); Haddock v. State, 282 Kan. 475, 507, 146 P.3d 187 (2006).

We apply an abuse of discretion standard when reviewing a district court's ruling on a motion to dismiss criminal charges as a sanction for prosecutorial action or inaction. Francis, 282 Kan. at 149. However, when a defendant's constitutional right is involved, the discretion of the district court is limited. Under such circumstances, there is a greater need for the district court to articulate its reasons for any discretionary decision. State v.. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009). The party asserting the district court abused its discretion bears the burden of showing such abuse. State v. Reid, 286 Kan. 494, 512, 186 P.3d 713 (2008).

We conclude that the trial court's findings of fact concerning the credibility evidence presented to the jury that Bunville was already convicted of a crime and awaiting sentencing are supported by the record. The following occurred during Bunville's cross-examination by defense counsel:

“Q. [DEFENSE COUNSEL:] Now, Mr. Bunville, you have a criminal case pending yourself, do you not?


“A. [BUNVILLE] Yes.


“Q. You were convicted in March of 2008?


“A. Yes.


“Q. You've never been sentenced on that case, have you?


“A. No.


“Q. The sentencing date comes and goes, doesn't it?


“A. Yes.


“Q. And the sentencing hasn't happened because you haven't completed testifying against Cameron Nelson, correct?


[PROSECUTOR]: Your honor, I'm going to object. I think the proper question is did you get any benefit or did you make any deal for your testimony.


THE COURT: Overruled.


“A. Repeat the question please.


“Q. [DEFENSE COUNSEL:] You're not going to be sentenced on your case until you're done testifying against Cameron Nelson, are you?


“A. I don't know.


“Q. Your attorney hasn't told you that?


“A. No.”
Later in recross-examination, the following testimony occurred:


“Q. When you were asked by the prosecutor about your pending case, Mr. Bunville, your conviction occurred in March of 2008, didn't it?


“A. Yes.


“Q. Before this happened, correct?


“A. Yes.


“Q. And you are represented by an attorney?


“A. Yes.


“Q. Do you know whether or not your attorney has talked with anyone to try and help you out on your sentencing?


“A. No.”


Nelson contends that had he been able to impeach Bunville with the evidence that his family and attorney had approached the State and asked for a reduced charge or sentence in exchange for his testimony, the jury in the third trial, just like the first two, would have been unable to reach a verdict. We are not persuaded by Nelson's argument.

There is substantial evidence to support the trial court's finding that Bunville testified consistently that he did not know of any type of favorable agreement, and Bunville's attorney, a sworn and certified and licensed officer of the court, testified consistently that there was no such agreement. The testimony presented clearly outlined the facts that Bunville had been convicted of a crime and his sentencing would not occur until he had testified in a completed trial against Nelson. Bunville had not been promised anything in exchange for his testimony other than a repeated continuance of his sentencing. The prosecutor already had a guilty plea from Bunville, and Nelson has presented no evidence of any type of agreement based on Bunville's requested testimony against Nelson. Bunville's attorney testified at the motion for new trial that she had inquired on more than one occasion to see if they could get Bunville's felony plea reduced and every time was informed by the prosecutor the State was not going to do anything with Bunville's sentencing until he successfully testified against Nelson.

We find no prosecutorial misconduct or any type of Brady violation for testimony of a plea agreement, or any type of agreement, withheld by the prosecution. Bunviile was between a rock and a hard place because he had entered his felony plea before the commission of the murder by Nelson. Bunviile lost his clout because he had already entered his plea. He was proceeding with the continued sentencing hearings with the hope the prosecutor would look favorably upon his testimony against Nelson. This very fact was presented to the jury. Consequently, the evidence allegedly withheld by the prosecution was not material within the meaning of Brady, namely that no reasonable probability existed, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” in this context is a probability sufficient to undermine confidence in the outcome. Pacific Bell, 29 S.Ct. at 1783; Haddock, 282 Kan. at 507. We are not convinced the outcome of Nelson's trial would have been any different because the assumptions of Bunville being favorably treated at his sentencing were brought to the jury's attention.

Finally, Nelson claims he was denied a fair trial based on cumulative error. Even if an individual error is insufficient to support reversal, the cumulative effect of multiple errors may be so great as to require reversal. The test is “ ‘whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ [Citation omitted.]” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010).

“Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Outside of the trial court's listing of intent and preparation in the K.S.A. 60–455 evidence, the rest of Nelson's claims of error failed. “One error is insufficient to support reversal under the cumulative effect rule. [Citation omitted.]” 288 Kan. at 378.

Affirmed. BUSER, J., concurring:


I concur in the judgment affirming Nelson's conviction of unintentional but reckless second-degree murder. On the critical issue of the sufficiency of the evidence to support the conviction, however, I would not analyze the issue, as Judge Pierron has done, in terms of invited error in the giving of the lesser included offense instruction. Rather, I would analyze the issue as the parties briefed it on appeal: After review of all the evidence, viewed in the light most favorable to the prosecution, is the appellate court convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).

Nelson's argument is simple and straightforward: “In the present case, the State failed to present any evidence that would have allowed a rational factfinder to conclude that Mr. Nelson acted recklessly, rather than intentionally, in shooting Simpson.” In other words, Nelson contends that because there was evidence that he committed the intentional act of discharging a firearm at Simpson that Nelson necessarily intended to kill Simpson, thus precluding the jury's verdict of an unintentional but reckless second-degree murder.

Nelson's argument fails because it is premised on an incorrect understanding of what constitutes an intentional killing under Kansas law. In fairness to Nelson, subsequent to briefing and oral argument in the present case, our Supreme Court issued an opinion that clarified Kansas law on this exact question. See State v. Deal, 293 Kan. 872, Syl. ¶¶ 1, 2, 269 P.3d 1282 (2012). In Deal, the defendant framed the question as Nelson does in this appeal. As noted by our Supreme Court, “Deal argues the evidence established that he intentionally hit Donald Irvin with a metal tire iron and Irvin died as a result of these intentionally inflicted blows. Because Deal acted intentionally in inflicting these blows, he argues he cannot be guilty of unintentional but reckless second-degree murder.” Deal, 293 Kan. at 873.

After reviewing a myriad of Kansas cases discussing the matter (including many cases similarly cited by both Deal and Nelson on appeal), our Supreme Court disagreed with Deal's legal contention and concluded, “K.S.A. 21–3402 focuses culpability on whether a killing is intentional or unintentional, not on whether a deliberate and voluntary act leads to death.” (Emphasis added.) Deal, 293 Kan. at 885.

In the present case, in support of his legal contention, Nelson cites State v. Bailey, 263 Kan. 685, 691, 952 P.2d 1289 (1998), overruled on other grounds State v. Davis, 283 Kan. 569, 158 P.3d317 (2007), for the proposition that “a defendant's actions in pointing a gun at someone and pulling the trigger are intentional rather than reckless even if the defendant did not intend to kill the victim.” Bailey, 263 Kan. at 691. But in Deal, our Supreme Court specifically undermined Bailey's holding when it cited to Bailey and then concluded: “Notwithstanding the contrary language in this court's previous decisions, today we hold that K.S.A. 21–3402 focuses culpability on whether a killing is intentional or unintentional, not on whether a deliberate and voluntary act leads to death.” Deal, 293 Kan. at 885. Should there be any doubt that Bailey is no longer viable precedent regarding this issue, only recently our Supreme Court cited Deal in finding that “the district court erred by relying on Bailey.State v. McCullough, 293 Kan. 970, 979, 270 P.3d 1142 (2012).

In short, Deal effectively eliminates the central legal argument Nelson has raised on appeal—that because Nelson intended to shoot Simpson, he necessarily intended to kill him, thus precluding a conviction for an unintentional but reckless killing. On the contrary, after Deal, Kansas law provides that an individual who commits an intentional act which results in death, depending on the circumstances, may have committed either an intentional or a reckless killing.

Having determined that for purposes of proving unintentional but reckless second-degree murder, Kansas law focuses on whether the killing was unintentional, not on whether the act which caused the killing was unintentional, it is necessary to analyze the trial evidence to determine whether it was sufficient to support the jury's verdict in this case.

In evaluating the sufficiency of the evidence to support the jury's verdict that Nelson committed second-degree unintentional but reckless murder it is important to apply our well-established standard of review:

“When the sufficiency of the evidence is challenged in a criminal case, this court reviews all the evidence, viewed in the light most favorable to the prosecution, to determine whether the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” (Emphasis added.) State v. Trautloff, 289 Kan. 793, 800, 217 P .3d 15 (2009).


In my view, my dissenting colleague, Judge Green, has employed a different standard of review. First, rather than viewing the evidence in the light most favorable to the State, he views the evidence in the light most favorable to Nelson. That is, he analyzes the trial evidence highlighting only that evidence which tends to prove that Nelson intended to kill Simpson. This is the wrong approach. The correct approach: “As an appellate court we should filter the evidence that is contrary to the verdict and set it aside.” State v. O'Rear, 293 Kan. 892, 904, 270 P.3d 1127 (2012) (Luckert, J., dissenting).

Moreover, Judge Green's focus on evidence which could lead a jury to conclude that Nelson intended to kill Simpson ignores two very important considerations: First, the jury acquitted Nelson of intentional second-degree murder. Obviously, the jury did not share my dissenting colleague's view that the trial evidence unquestionably proved that Nelson intended to kill Simpson.

Second, and most importantly, simply because there is some evidence to support an intentional killing does not preclude a rational jury from concluding an unintentional but reckless killing was committed. In this regard, it is well-settled law:

“In reviewing the sufficiency of the evidence, an appellate court's function is not to determine the most compelling inference to be drawn from the evidence. Rather, a factfinder is permitted to reasonably infer the existence of a material fact from circumstantial evidence, even though the evidence does not exclude every other reasonable conclusion or inference.” (Emphasis added .) State v. Scaife, 286 Kan. 614, Syl. ¶ 3, 186 P.3d 755 (2008).


In short, assuming that some of the evidence highlighted by Judge Green tended to prove an intentional killing, this would not preclude a rational jury from viewing the same evidence or other evidence and arriving at a different inference or conclusion—that Nelson unintentionally but recklessly killed Simpson.

Employing the correct standard of review and applying Deal's legal precedent to the facts of this case, I believe there was sufficient evidence, viewed in the light most favorable to the State, that Nelson committed unintentional but reckless second-degree murder.

K.S.A. 21–3402(b) defines murder in the second degree as “the killing of a human being committed ... unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” In the present case, there was evidence that Nelson discharged a .45 caliber firearm while in a slowly moving car in a residential neighborhood with individuals in the street and surrounding area. It is apparent that discharging a deadly weapon under these circumstances “manifests extreme indifference to the value of human life” under K.S.A. 21–3402(b).

Next, there was evidence from which a rational factfinder could conclude that the killing of Sullivan was unintentional. As the majority opinion states, Kash Wilson had fought with Jason Hartfield. Nelson was roommates with Wilson, as was Clifford Bunville. Bunville testified that Wilson was visibly injured in the fight and was upset at being “jumped.” Neither Wilson nor Nelson owned a vehicle, but Bunville had a silver Alero.

Shortly after midnight on April 15, 2008, Hartfield was at 545 S. 10th in Salina. Also present were Lauren Berry and Jana Crawford. Berry and Crawford decided to investigate the silver Alero and its occupants who were driving about the neighborhood that night. As Berry and Crawford drove around they saw the silver Alero parked and unoccupied. Berry and Crawford returned to 545 S. 10th and saw two men on the porch and another in the yard. The women honked the horn and yelled at the men, who fled.

Berry and Crawford saw the men run down a nearby alley, and the women approached in their vehicle. In testimony admitted under K.S.A. 60–455, the women said the men fired shots at them from the alley. Berry testified that the men were also running towards them, and Crawford testified the men were half-way down the alley when the shooting began. The women sped off and went to a lighted area to inspect their vehicle, which had not been struck by any bullets.

Forensic evidence proved the .45 caliber firearm used in the shootings involving Berry and Crawford also was used a short time later when Simpson was shot from Bunyard's silver Alero and killed. At that time, Nelson had a .45 caliber firearm, he was seated in Bunyard's vehicle with Wilson, and he was identified as Simpson's shooter.

From this evidence, a rational factfinder could conclude: (1) Nelson was also the shooter in the alley and had not aimed at the vehicle but rather fired the deadly weapon with an intent to frighten Berry and Crawford, who had come from the house containing Hartfield; and (2) that when Nelson fired from Bunyard's silver Alero, he similarly intended to frighten Simpson and others around the house containing Hartfield without the specific intent of killing him.

Moreover, questioning at oral arguments confirmed the State produced no direct evidence that Nelson intended to kill Simpson or anyone else. Nelson did not testify, so his intent in shooting the firearm was unknown. Moreover, no witness testified to any statements made by Nelson either before or after the shooting to indicate that his purpose in firing the weapon was to kill, let alone injure Simpson. Of course, the absence of this evidence could explain the jury's acquittal of Nelson for intentional second-degree murder.

Circumstantial evidence also tended to disprove an intentional killing. For example, expert forensic testimony established that a single bullet struck Simpson on his upper left side and travelled horizontally through his body until exiting on his right side. In other words, at the time Nelson shot Simpson he only had a side view of him, not a full front or back view. There also was no forensic evidence of soot and stipling, which would have indicated a close contact wound. In short, forensic evidence developed during the autopsy was not consistent with the type of wounds typically associated with intentional killings, such as multiple gunshot wounds, a close contact wound to the head, or a wound to the center of the chest.

Finally, Judge Green contends, “[t]his case is easily distinguishable from Deal.” I agree, but in comparison, the facts of the Simpson killing present a more compelling case of an unintentional but reckless killing than were found by our Supreme Court in Deal. First, in Deal, a short time prior to the killing of Donald Irvin, Deal learned that “Irvin had kept Deal's girlfriend at Irvin's residence for 3 days during which time Irvin had drugged and sexually abused her.” Deal, 293 Kan. at 874–75. Given this information, it is understatement to observe that Deal may have had a motive to kill Irvin. In the present case, however, there was no evidence that Simpson had wronged Nelson. In fact, there was scant evidence to associate Simpson with Nelson or the group which had jumped Wilson. Simpson was merely walking in the street in front of the house associated with Hartfield's group. Unlike Deal, there was no clear motive for Nelson to kill Simpson.

Second, in Deal, the intentional act which resulted in Irvin's death was Deal wielding a tire iron about 18 to 20 inches long, which struck Irvin's body numerous times. The autopsy of Irvin's body revealed the vicious nature of the attack:

“At trial, Dr. Czarnecki testified Irvin had blunt force injuries to his head, chest, abdomen, left shoulder area, legs and head....Dr. Czarnecki explained that Irvin sustained a depressed fracture to his head and Irvin's skull had been pushed into his brain; the head injuries were on both the left and right side of the head. Irvin sustained four rib fractures and breaks in each forearm .” Deal, 293 Kan. at 876.
Our Supreme Court concluded that these facts could support the jury's verdict of an unintentional but reckless killing. 293 Kan. at 885–86.


In my view, if these facts permitted a rational jury to conclude that the killing of Irvin was unintentional, the facts in the present case, involving a single shot fired by Nelson which struck the side of Simpson's body could also yield a similar conclusion that the killing of Simpson was unintentional but reckless.

In conclusion, I concur in the judgment affirming Nelson's conviction because I believe the evidence viewed in the light most favorable to the State supported the jury's verdict that Nelson unintentionally but recklessly killed Simpson under circumstances manifesting extreme indifference to the value of human life. GREEN, J., dissenting:


Although the State charged Cameron Nelson with intentional second-degree murder, the trial court sua sponte instructed the jury on the lesser included offense of unintentional but reckless second-degree murder. Because the State failed to present any evidence that Nelson killed Mark Simpson “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life,” rather than intentionally, Nelson's conviction for reckless second-degree murder should be reversed.

Nevertheless, one member of the majority concludes that Nelson waived his sufficiency argument because he failed to object to the lesser included offense instruction for unintentional reckless second-degree murder. In contending that Nelson invited this error, the majority states:

“Defense counsel agreed with and/or failed to object to the instructions given to the jury at all three of Nelson's trials. Nelson cannot now challenge the sufficiency of a conviction under one of the lesser included crimes that he did not object to. See K.S.A. 22–3414(3); [State v.] Murray, 285 Kan. [503,] 522[, 174 P.3d 407 (2008) ]; [State v.] Kirtdoll, 281 Kan. [1138,] 1150[, 136 P.3d 417 (2006) ] (applying invited error rule to reject appellant's claim that instruction was clearly erroneous where counsel ‘championed the use of the [challenged] instruction over the State's objection’).” Nelson, majority slip op. at 11.


This statement by the majority just quoted defies the unequivocal pronouncement of our Supreme Court:

“Under the Due Process clause of the 14th Amendment, no person may be convicted of a crime unless every fact necessary to establish the crime with which he is charged is proven beyond a reasonable doubt.” State v. Switzer, 244 Kan. 449, 450, 769 P.2d 645 (1989) (citing In re Winship, 387 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 [1970] ).
So, the invited error rule simply cannot trump a defendant's right to have every element of the crime proved. See State v. Gadelkarim, 256 Kan. 671, 694, 887 P.2d 88 (1994).


In recognizing that the invited error rule is well established in Kansas, this court explained that the rule could not sweep away a defendant's right to have every element of the crime proved:

“It is not the defendant's role to make sure he or she is convicted of each and every element of a crime. Rather, it is the State's burden to prove each and every element of a crime beyond a reasonable doubt. [The defendant] did not invite this error. Even if he had, invited error cannot trump a defendant's constitutional rights. A defendant has a due process right to be found guilty on each and every element beyond a reasonable doubt.” In re Winship, 397 U.S. [at 364].” State v. Folley, No. 89,368, 2004 WL 1714918, at *1 (Kan.App.2004) (unpublished opinion).
See State v. Hunt, No. 104,529, 2011 WL 5027097, at *3 (Kan.App.2011) (unpublished opinion).


In the present case, the invited error rule cannot sweep away Nelson's right to have every element of the crime of reckless second-degree murder proved. Sufficiency of the Evidence

“Murder in the second degree is the killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 21–3402. In interpreting K.S.A. 21–3402, our Supreme Court recently held that this statute “focuses culpability on whether a killing is intentional or unintentional, not on whether a deliberate and voluntary act leads to death.” State v. Deal, 293 Kan. 872, 885, 269 P.3d 1282 (2012).

The State's key witness was Clifford Bunville. He testified that he loaned his silver Alero car to Nelson, Kash Wilson, and Jared Veal on the night of the shooting. After they left, they returned and asked Bunville to go with them to fight Jason Hartfield. They decided that Wilson would drive the car. Nelson sat in the front passenger seat of the car, Veal sat behind the driver in the back seat, and Bunville sat behind Nelson in the back seat. When Wilson turned onto 10th street in Salina, Bunville stated that he saw a white car pulling up to the address for which they were watching. The conversation in Bunville's car turned to whether the guys in the street were friends of Hartfield. Wilson turned down 10th street for another pass at this address. When he passed by the residence, Wilson nicked Mark Simpson with the car, and Simpson stumbled. Bunville testified that Simpson started walking toward the front passenger side of the car when Nelson stuck his arm out of the front passenger's car window and shot Simpson.

It is undisputed that Nelson pointed a high caliber gun at Simpson and pulled the gun's trigger. Investigators found a .45 caliber spent casing near Simpson's body. A .45 caliber bullet fired from a .45 caliber gun is an extremely lethal firearm. This bullet is often called a “manstopper.” Experts say that the .45 caliber bullet fits in the category of a “one-shot-stop” round. In fact, at least one other jurisdiction has ruled that the use of a high caliber weapon, coupled with the location of the victim's wounds, could support a finding of premeditation. See People v. Davis, 2010 WL 99005, No.s 285473, 286964, at *4 (Mich.App.2010) (unpublished opinion) (defendant's use of a .45 caliber gun coupled with victim's wounds to his torso supported a finding of a premeditated killing).

The concurrence correctly notes that in Deal our Supreme Court clarified that “K.S.A. 21–3402 focuses culpability on whether a killing is intentional or unintentional, not on whether a deliberate and voluntary act leads to death.” 293 Kan. at 885. Our Supreme Court went on to discuss the facts in Deal that support an unintentional but reckless murder. There, Deal was first attacked by the victim with a tire iron, once Deal wrestled the tire iron away from the victim, Deal, without intending to kill, struck the victim once in the shoulder and once in the head. Our Supreme Court does not dispute that this was a deliberate act; it noted that Deal denied that he intended to kill. Additionally, our Supreme Court pointed out that it cannot be said that death, as opposed to serious injury, is a substantially certain result of hitting someone in the head with a metal bar. 293 Kan. at 885.

This case is easily distinguishable from Deal. Here, Nelson came to the scene of the crime with a loaded .45 caliber gun. He wanted to help his friend to get revenge for an earlier beating. Simpson had not shown any aggression toward Nelson, nor had he threatened Nelson's life. He just walked toward the car that Nelson was in. When Simpson got close to the car, Nelson stuck his arm out the car window and shot him. Unlike Deal, Nelson did not testify. So, we do not know Nelson's purpose for shooting Simpson. Moreover, in this case, we are dealing with a .45 caliber gun opposed to a tire iron. It cannot be said that serious injury, as opposed to death, is a substantially certain result when shooting someone at close range with a .45 caliber gun.

The concurrence states that the State conceded during oral argument that it presented no direct evidence during the trial that Nelson intended to kill Simpson or anyone else. I disagree. During oral argument, the State stated that it never presented or argued that the shooting could be anything other than an intentional killing. In pointing out that the evidence showed the killing of Simpson was intentional, the State told the jury the following: “Cameron Nelson ... is guilty of intentional second degree murder. He pointed that gun at Mark Simpson, shot it, and you don't point a gun and shoot at someone unless you intend to kill them.”

Moreover, the concurrence makes a hasty generalization when he says that the type of wounds typically associated with intentional killings are multiple gunshot wounds, a close contact wound to the head, or a wound to the center of the chest. If this the induction is correct, this would mean that many of this Country's most shocking murders and assassinations were not intentional because they were not committed in one of the three ways cited by the concurrence. Certainly, my colleague would agree that there are intentional killings committed every day that do not fall into one of these three categories.

Finally, the concurrence contends that because Nelson intended to only frighten Berry and Crawford when he fired two shots in the direction of their car, he likewise intended to only frighten Simpson when he fired a shot from Bunville's car. Thus, the concurrence concludes that Nelson had no intent to kill Simpson. This conclusion is a non sequitur. From a fact that a gunman shoots in the direction of a car occupied by two people and the gunman's bullets miss the car or the occupants, it does not follow that the gunman intended to only frighten the occupants of the car. Thus, it does not follow that all other shootings by the gunman after this initial shooting are intended to only frighten someone. Such a conclusion would mean that a gunman could never be convicted of an intentional killing if the gunman had earlier shot at some people to only frighten them.

Nelson's deliberate selection and use of a .45 caliber gun directed at a vital part of Simpson's body is a circumstance which indicates a design to intentionally kill Simpson. Let us review the facts of this shooting:

• Nelson was pointing a .45 caliber gun in the direction of Simpson when it was fired.


• The gun could not have fired unless the trigger was pulled with a conscious effort.


• The gun was fired while Nelson held it, killing Simpson,


• A witness testified that he heard only one gunshot.


• Only one .45 caliber spent casing was collected in an area near Simpson's body.


• Simpson was standing very close to Bunville's car when Nelson stuck his arm out of the front passenger's car window and shot Simpson.


• There was no evidence that Nelson was target shooting, was indiscriminately firing the gun into the air, or was shooting into a crowd of people.


Here, there is no evidence in Nelson's case—even in the form of a statement from Nelson about his purpose in shooting Simpson—to support a finding that the killing of Simpson was unintentional. See State v. McCullough, 295 Kan. 970, 997–80, 270 P.3d 1142 (2012). It is undisputed that Nelson pointed a .45 caliber gun at Simpson and pulled the gun's trigger. The .45 caliber bullet tore through a vital part of Simpson's body, killing him. Nelson knew that he could not avoid striking Simpson in that vital area of his body because of their close proximity to each other. All the evidence indicates that Nelson's desire to help his friend to seek revenge impelled him to do the things cited previously. Thus, Nelson intended to kill Simpson when he consciously pulled the trigger of that .45 caliber gun, which was pointed at vital part of Simpson's body.

Because the only evidence before the jury in the present case indicates that Nelson intended to kill Simpson, there was no evidence that would have allowed a rational factfinder to conclude that Nelson acted recklessly, rather than intentionally, in shooting Simpson. As a result, I would reverse Nelson's conviction for unintentional but reckless second-degree murder.