State v. Smith ( 2021 )


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  •                            NOT DESIGNATED FOR PUBLICATION
    No. 121,332
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    STATE OF KANSAS,
    Appellee,
    v.
    MICHAEL COLLINS SMITH,
    Appellant.
    MEMORANDUM OPINION
    Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed October 1,
    2021. Affirmed in part, reversed in part, vacated in part, and remanded with directions.
    Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
    Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
    Schmidt, attorney general, for appellee.
    Before GREEN, P.J., ISHERWOOD, J., and MCANANY, S.J.
    PER CURIAM: A jury convicted Michael Collins Smith of voluntary manslaughter,
    attempted voluntary manslaughter, aggravated child endangerment, and criminal
    possession of a firearm. Smith appeals, arguing that we should reverse his convictions
    because the trial court made multiple errors when instructing the jury. Smith further
    argues that we should reverse his criminal possession of a firearm conviction because it
    violates section 4 of the Kansas Constitution Bill of Rights. Finally, Smith contends that
    we should vacate his sentences and remand the case to the trial court with directions to
    resentence him without using his criminal history to enhance his sentences. According to
    1
    Smith, by relying on his criminal history to enhance his sentences, the trial court violated
    his common-law right to jury trial as preserved under section 5 of the Kansas
    Constitution Bill of Rights.
    Of Smith's arguments, we find error only in the trial court's failure to instruct the
    jury on imperfect self-defense involuntary manslaughter as a lesser included offense of
    Smith's intentional first-degree murder charge for the killing of A.S. As a result, we
    reverse Smith's conviction for the on sudden quarrel voluntary manslaughter of A.S.
    under K.S.A. 2016 Supp. 21-5404(a)(1), vacate his corresponding sentence, and remand
    the case to the trial court for a new trial on whether Smith committed (1) an on sudden
    quarrel voluntary manslaughter of A.S. under K.S.A. 2020 Supp. 21-5404(a)(1) or (2) an
    imperfect self-defense involuntary manslaughter under K.S.A. 2020 Supp. 21-5405(a)(4).
    Thus, we affirm in part, reverse in part, vacate in part, and remand with directions.
    FACTS
    This case concerns an incident that occurred on February 2, 2017, a little after 4 in
    the afternoon that led to Smith's deadly shooting of A.S. Significantly, many of the facts
    surrounding the shooting are undisputed.
    For instance, it is undisputed that the shooting occurred between the living room
    and kitchen inside the two-bedroom apartment that A.S. shared with his girlfriend—K.R.,
    their three-month-old infant—K.S., K.R.'s mother—B.G., as well as K.R.'s two younger
    sisters. It is undisputed that aside from Smith, only A.S., K.S., and B.G. were at or near
    the apartment when the shooting happened. It is undisputed that a few minutes before the
    shooting, Smith was aware that A.S. was carrying K.S. with him around the apartment. It
    is uncontested that when Smith left the apartment, he fired more shots when he saw B.G.,
    who had been talking on her cell phone near the apartment's staircase. It is undisputed
    that when law enforcement officers arrived at the apartment, they found A.S., who had
    2
    already succumbed to his six bullet wounds, lying on his back with no weapons on or
    near his body. And it is undisputed that when the police arrived, they also discovered
    K.S., who was too young to raise her own head or roll over by herself, lying next to her
    father's dead body. Likewise, it is uncontested that on arriving at the apartment, the police
    discovered evidence indicating that A.S. was involved in the illegal drug trade. For
    example, the police discovered a substantial amount of marijuana and over $30,000 in
    cash in the apartment. Lastly, it is undisputed that as of February 2, 2017, Smith owed
    A.S. $2,000, a sum he was supposed to have repaid to A.S. by October 2016.
    Based on the events at the apartment on February 2, 2017, the State charged Smith
    with the intentional first-degree murder of A.S., the attempted intentional first-degree
    murder of B.G., and the aggravated endangerment of K.S. Because Smith's criminal
    history prohibited him from possessing a gun, the State also charged Smith with criminal
    possession of a firearm. Also, because some text messages retrieved from A.S.'s cell
    phone indicated that Smith wanted to buy marijuana from A.S., the State charged Smith
    with using a communication facility to engage in a drug crime.
    Smith's jury trial
    Smith's jury trial on the preceding charges occurred between February 11, 2019,
    and February 15, 2019. At trial, the State's case against Smith hinged on its assertion that
    Smith committed intentional first-degree murder by shooting A.S. six times as he held
    K.S. in his arms. Although not entirely clear, it seems the State believed that Smith
    committed a premeditated shooting as he and A.S. attempted to complete a drug deal
    inside the apartment. It supported this theory by pointing to the text messages retrieved
    from A.S.'s cell phone indicating that Smith wanted to buy marijuana from A.S. The
    State's case further hinged on its contention that after intentionally murdering A.S., Smith
    tried to intentionally kill B.G. when he was leaving the apartment.
    3
    On the other hand, Smith's case hinged on his contention that he went to the
    apartment on February 2, 2017, to discuss his $2,000 debt, but those discussions quickly
    became heated when A.S. realized that Smith could not repay the debt. Although Smith
    admitted that he technically possessed a firearm, he denied intending to kill A.S.,
    intending to kill B.G., recklessly causing the endangerment of K.S., being a criminal in
    possession of a firearm, or wanting to buy marijuana from A.S. He instead insisted that
    he had to shoot A.S. in self-defense because A.S. was actively trying to kill him with a
    handgun that he ultimately gained control of and then used to kill A.S. He argued that
    because A.S. was trying to kill him, he never noticed if A.S. was holding K.S. in his arms
    as he fired the gun. For this reason, as well as his self-defense claim against A.S., Smith
    argued that the jury should acquit him of endangering K.S. Additionally, he argued that
    because he believed that B.G. was trying to shoot him with a black handgun that he had
    earlier seen on the apartment's kitchen counter, he acted in self-defense when he fired
    "warning shots" towards B.G. as he left the apartment. Of note, Smith's contention that
    there was a black handgun on the apartment's kitchen counter when he initially entered
    the apartment on February 2, 2017, was a central part of his defense.
    The State's evidence
    To support its case, the State primarily relied on the testimony of B.G. During her
    testimony, B.G. denied that there was a black handgun located on the kitchen counter
    when Smith initially entered the apartment on February 2, 2017. She alleged that to her
    knowledge, there were no "gun[s] anywhere hanging out in the apartment." So she also
    denied trying to shoot Smith as he left the apartment.
    As for the events leading up to the shooting, B.G. explained that Smith knocked
    on the apartment door a little before 4 p.m. on February 2, 2017. B.G. explained that
    although she did not know that Smith was coming over to the apartment that afternoon,
    she was familiar with him because Smith, who was a barber, had previously trimmed
    4
    A.S.'s hair at the apartment. She also testified that once Smith entered the apartment,
    Smith and A.S. went into the master bedroom.
    According to B.G., after Smith and A.S. went into the master bedroom, she went
    into the apartment's other bedroom so she could talk on her cell phone. But B.G.
    explained that she remained in this bedroom for only a few minutes because she decided
    to continue her cell phone conversation outside the apartment. Also, she explained that as
    she departed the apartment, Smith was once again entering the apartment. She testified
    that as Smith reentered the apartment, he was carrying a black bag.
    Next, B.G. testified that she continued to talk on her cell phone after leaving the
    apartment. She testified that not long after Smith reentered the apartment, though, she
    heard five or six rapid gunshots come from inside the apartment. B.G. explained that
    when she heard the gunshots, she looked towards the apartment door. At that point, she
    saw Smith hurriedly leaving the apartment. She further testified that once Smith noticed
    her, Smith aimed a gun at her and started shooting.
    B.G. testified that when Smith started shooting at her, she dropped her cell phone,
    started running, and then hid behind a car in the apartment parking lot. She testified that
    Smith shot at her five to six times in total, with one bullet making a hole in her sweatshirt
    as it grazed her right arm. The State introduced photos that showed a hole in the right arm
    of B.G.'s sweatshirt. B.G. then explained that after Smith drove off, she went to a
    neighbor's apartment and called 911 for help.
    In addition to B.G.'s testimony, the State called law enforcement officers, forensic
    scientists, and crime scene analysts who investigated the apartment shooting to support
    its case. The law enforcement officers who initially responded to B.G.'s 911 call all
    testified that they could hear K.S. crying very loudly inside the apartment before they
    entered it. They all explained that when they entered the apartment shortly after
    5
    4:15 p.m., K.S. was lying face-down on her stomach within arm's reach of her father's
    body. Meanwhile, the State's forensic biologist testified that A.S.'s blood created the
    blood stain found on K.S.'s clothing.
    On the search of the apartment immediately following the shooting, one officer
    explained that he found a holstered black Smith and Wesson handgun in the master
    bedroom. The primary crime scene investigator assigned to the case, Amy Santoro,
    testified about finding ballistics related evidence, which included the following: (1) four
    spent bullets immediately above the concrete subfloor under A.S.'s body between the
    apartment's living room and kitchen area, (2) one spent bullet under K.S.'s baby bouncer
    in the apartment's living room, (3) one spent bullet in A.S.'s left shoulder, and (4) one
    spent bullet in the apartment's parking lot. According to Santoro, this final spent bullet
    was located under one of the two cars in the apartment's parking lot with evidence of
    gunshot damage. Santoro as well as multiple officers also testified about the discovery of
    five shell casings inside the apartment and three shell casings in the apartment's parking
    lot.
    About the specific features of the spent bullets and casings recovered, Santoro
    explained that the characteristics of the four spent bullets recovered immediately above
    the concrete subfloor under A.S.'s body and the single spent bullet found under the car in
    the apartment's parking lot showed that Smith fired those bullets with a downward
    trajectory. Also, the State's ballistics expert testified that based on his review of the shell
    casings recovered from the apartment and the apartment parking lot, he believed that all
    the recovered shell casings were fired from the same gun. His testing also eliminated the
    holstered Smith and Wesson handgun found in the apartment's master bedroom from
    firing the shell casings recovered from the apartment and the apartment parking lot.
    As for A.S.'s gunshot wounds, Dr. Michael S. Handler, the forensic
    neuropathologist who completed A.S.'s autopsy, testified that A.S. had six gunshot
    6
    wounds to his body that he believed were caused by six distinct gunshots. Dr. Handler
    specifically testified that those six gunshot wounds to A.S. were as follows: (1) a wound
    caused by a bullet that entered A.S.'s left chest and exited A.S.'s right chest with a "front
    to back, left to right, and horizontal" trajectory; (2) a wound caused by a bullet that
    entered A.S.'s lower right abdomen and exited A.S.'s lower right side with a "front to
    back, left to right, and upward" trajectory; (3) a wound caused by a bullet that entered
    A.S.'s left, middle back and exited his right abdomen with a "left to right, back to front,
    and downward" trajectory; (4) a wound caused by a bullet that entered A.S.'s groin area
    and exited his left buttocks with a "front to back, right to left, and horizontal" trajectory;
    (5) a wound caused by a bullet that entered A.S.'s left shoulder and never exited with a
    "left to right, upward, and slightly forward" trajectory; and (6) a wound cause by a bullet
    that entered and then exited A.S.'s left hand with an "upward" trajectory. Relatedly, the
    State's blood pattern expert testified that the absence of blood staining on A.S.'s abdomen
    meant that A.S. was primarily in a nonupright position when Smith shot him.
    Finally, in addition to the preceding evidence, the State successfully admitted a
    recording of a telephone conversation between Smith and another person on February 6,
    2017, that occurred while Smith was in jail following his arrest. During this phone
    conversation, Smith stated that A.S. "pull[ed] a weapon out with a baby in his hands."
    When the person Smith was speaking to questioned him on this, Smith repeated that A.S.
    was "holding the kid when he pulled the gun out."
    Smith's evidence
    To support his case, Smith mainly relied on his own testimony. Indeed, outside of
    a friend's testimony about having a normal conversation with Smith a few hours before
    the apartment shooting on February 2, 2017, Smith's testimony was the only evidence
    supporting his claims of self-defense.
    7
    Smith testified that he went over to the apartment around 4 p.m. on February 2,
    2017, to talk to A.S. about his $2,000 debt. According to Smith, he wanted to discuss
    loan repayment options with A.S. because the previous week A.S. had told him the final
    deadline to repay his debt was February 3, 2017. Smith explained that although A.S. did
    not say what he would do to him if he did not repay the debt by February 3, 2017, he
    knew that A.S. had a reputation for a short temper. He noted that A.S. had previously
    been in an altercation, which ended with A.S. being "shot in the face." Smith therefore
    wanted to figure out some sort of repayment plan before the deadline to avoid upsetting
    A.S. despite not having enough money to repay the debt. On the repayment plan, Smith
    testified that in addition to being a barber, he was a comedian. He explained that he was
    hoping that A.S., who was an aspiring rapper, would allow him to repay the debt by
    selling A.S.'s music at his comedy shows. He also explained that he was hoping that A.S.
    would accept his video camera and laptop computer as partial repayment for the loan.
    As for what happened next, Smith testified that when he arrived at the apartment,
    A.S. answered the door and immediately asked him if he had his barber tools with him
    because he wanted his hair trimmed. Smith stated that after telling A.S. that he could trim
    his hair, he returned to his car, retrieved his barber tools, and retrieved the video camera
    that he hoped A.S. would accept as partial repayment for his $2,000 debt. Smith alleged
    that his barber tools were inside a beige bag, which he carried into the apartment.
    Although Smith denied returning to his car to retrieve a gun, he alleged that once he
    actually entered the apartment after retrieving his barber tools and video camera, he
    noticed that there was a black handgun on the kitchen counter. When asked if the
    presence of the black handgun concerned him at all, Smith testified that it did not because
    it was not "unusual" for guns to be "out" in the apartment.
    Smith testified that after he entered the apartment, he and A.S. went into the
    master bedroom, where he assumed he would be trimming A.S. hair. Yet, he testified that
    he never started trimming A.S.'s hair because as soon as they went into the master
    8
    bedroom, A.S. started complaining about his debt. Smith alleged that it was at this point,
    A.S. became angrier with him about his inability to repay his loan. He explained that as
    A.S.'s anger increased, he saw B.G. leave the apartment while talking on her cell phone.
    And he stated that shortly after he saw B.G. do this, he also exited the apartment so he
    could retrieve his laptop from his car. Smith seemed to hope A.S. would calm down when
    he realized Smith had also brought the laptop as partial payment for his debt.
    But Smith testified that when he returned to the apartment with his laptop, which
    was itself inside a black or brown satchel, B.G. requested to search his satchel before
    allowing him to reenter the apartment. He stated that immediately after B.G. did this and
    he reentered the apartment, though, A.S. approached him with a gun. He testified that
    A.S. then put a gun up against his head and said, "[I]t's been six months, you got my
    money. You think I am stupid? You are trying to play me. . . . I don't need no fucking
    MacBook Pro. I got a MacBook Pro. I don't need no video. I need my money."
    According to Smith, on reentering the apartment, he never noticed if K.S. was in
    the living room area because he was completely focused on the fact that A.S. had a gun
    against his head. Also, according to Smith, when A.S. put the gun against his head, he
    reacted by putting his hands in the air. Yet, Smith testified that as he put his hands in the
    air, he was able to twist A.S.'s gun downward so that a brief struggle over the gun ensued.
    He testified that at the conclusion of this brief struggle, he and A.S. were standing upright
    with A.S.'s back to his chest as he held the gun in his left hand. He stated that once they
    were in this position, he kicked A.S. forward and attempted to shoot him in the buttocks
    but instead shot him in the back.
    Smith testified that following this first gunshot, A.S. fell to the ground. Then A.S.
    attempted to drag him to the ground as well by pulling on his satchel. He further testified
    that as A.S. tried to drag him to the ground, A.S. continued threatening to kill him. Smith
    testified that it was at this point, he shot A.S. in the left shoulder. Then, he testified that
    9
    because A.S. continued to pull on his satchel, he decided to shoot A.S. until he let go of
    his satchel. When asked why he did not leave after firing the first two gunshots, Smith
    explained that he did not leave because "[they] weren't done." Also, Smith testified that it
    was not until after A.S. let go of his satchel that he realized that the gun in his hands was
    not the black handgun he had seen earlier on the apartment's kitchen counter. Instead, he
    explained it was then that he realized he was holding a silver handgun that he had never
    seen before.
    Smith contended that after A.S. let go of his satchel, he ran outside to tell B.G. to
    call 911. Smith testified, however, that when he departed the apartment, B.G. dropped her
    cell phone and reached for something, which he believed was the black handgun missing
    from the apartment's kitchen counter. He testified that because he believed that B.G. was
    trying to shoot him with the missing black handgun, he fired a "warning shot" "ahead,
    and kind of to the right" into a car windshield to scare B.G. away. He also testified that as
    B.G. ran away from him following this first warning shot, he shot the gun once in B.G.'s
    direction before firing more shots off into the air. He indicated that he thought he needed
    to shoot the gun in B.G.'s direction because B.G. had run off to his left and his car was
    also parked to his left.
    Smith testified that after doing this, he got into his car and drove off before briefly
    returning to the apartment to retrieve his barber tools, video camera, and laptop. He
    explained that once he left the apartment this time, he did not return. Instead, he conceded
    that after leaving the apartment this final time, he tossed the silver handgun in a dumpster
    before spending the night at a girlfriend's house and turning himself into law enforcement
    the next day—February 3, 2017.
    During his cross-examination, Smith made other concessions. He conceded that he
    sustained no injuries from his alleged struggle with A.S. over the silver handgun. He
    conceded that he never checked on either A.S.'s or K.S.'s well-being after the shooting.
    10
    He conceded that he never called 911 so emergency services could quickly address A.S.'s
    gunshot wounds. Although he still denied seeing K.S. in the apartment's living room or
    kitchen area, he conceded that when he returned to the apartment to retrieve his barber
    tools, video camera, and laptop, he could hear K.S. crying. And he conceded that when
    he returned to the apartment, he went back into the kitchen specifically because "that's
    where [his] satchel and [his] video camera was." When the prosecutor asked him if he
    returned to the apartment after shooting A.S. to steal some of the marijuana and cash
    located in the apartment's master bedroom, Smith denied returning to the apartment for
    this purpose.
    Jury instruction conference
    At the jury instruction conference, the trial court granted Smith's request to
    instruct the jury on attempted intentional second-degree murder and imperfect self-
    defense attempted voluntary manslaughter as lesser included offenses of his attempted
    intentional first-degree murder charge for the attempted killing of B.G. The trial court
    also granted Smith's request to instruct the jury on intentional second-degree murder and
    voluntary manslaughter on sudden quarrel as lesser included offenses to his intentional
    first-degree murder charge for the killing of A.S. But it denied Smith's request to instruct
    the jury on imperfect self-defense involuntary manslaughter as stated under K.S.A. 2016
    Supp. 21-5405(a)(4) as a lesser included offense of his intentional first-degree murder
    charge for the killing of A.S. Also, over Smith's objection, the trial court granted the
    State's request to give a forcible felony instruction regarding the evidence indicating
    Smith might have been involved in a marijuana sale when the shooting occurred.
    Verdicts
    In the end, the jury acquitted Smith of using a communication facility to commit a
    drug crime. But it convicted Smith of the aggravated endangerment of K.S. and criminal
    11
    possession of a firearm. Also, it found Smith guilty of the on sudden quarrel voluntary
    manslaughter of A.S. and the imperfect self-defense attempted voluntary manslaughter of
    B.G.
    Sentencing
    At sentencing, for each of his crimes, the trial court sentenced Smith to the
    standard presumptive sentence under the revised Kansas Sentencing Guidelines Act
    (KSGA) based on his criminal history score of A. It also ran each of Smith's sentences
    consecutive. As a result, the trial court imposed on Smith a total controlling sentence of
    279 months' imprisonment followed by 36 months' postrelease supervision.
    Smith now timely appeals his convictions and sentences.
    ANALYSIS
    Did the trial court err when instructing the jury?
    In his primary argument on appeal, Smith contends that the trial court erred when
    it instructed the jury in multiple ways: First, Smith asserts that the trial court should have
    instructed the jury on imperfect self-defense. In particular, he argues that the trial court
    erred when it denied his request to instruct the jury on imperfect self-defense involuntary
    manslaughter as a lesser included offense of his intentional first-degree murder charge for
    the killing of A.S. And although he never requested the instruction, he argues that the
    trial court clearly erred when it failed to instruct the jury on imperfect self-defense
    attempted involuntary manslaughter as a lesser included offense of his attempted
    intentional first-degree murder charge for the attempted killing of B.G. Second, Smith
    asserts that the trial court clearly erred when it gave the jury a forcible felony instruction,
    which stated that the jury must reject his self-defense claims if it believed that he used
    force to defend himself while selling marijuana or aiding in the sale of marijuana. Third,
    12
    Smith contends that the trial court clearly erred when it failed to instruct the jury on
    misdemeanor child endangerment as a lesser included offense of his aggravated child
    endangerment charge for endangering K.S.
    Standard of review
    When considering jury instruction issues, this court employs a three-step review
    process: First, this court must determine whether "'there is a lack of appellate jurisdiction
    or a failure to preserve the issue for appeal.'" State v. McLinn, 
    307 Kan. 307
    , 317, 
    409 P.3d 1
     (2018). Second, if this court concludes that the jury instruction issue is properly
    before it, this court must consider whether an error actually occurred by determining
    whether the disputed instruction was legally and factually appropriate. Third, if this court
    determines that the disputed instruction was both legally and factually appropriate, this
    court must consider whether the jury instruction error can be deemed harmless. 307 Kan.
    at 317.
    Importantly, under the second step of the review process, this court must consider
    whether the disputed jury instruction was both legally and factually appropriate based on
    an unlimited review of the entire record. 307 Kan. at 318. Yet, this court evaluates
    whether a defendant's requested instruction was factually appropriate by analyzing
    whether the evidence supported giving the instruction when viewed in the light most
    favorable to the defendant. State v. Williams, 
    303 Kan. 585
    , 598-99, 
    363 P.3d 1101
    (2016). Also, when considering challenges involving lesser included offense instructions,
    the trial court has a duty to give a defendant's requested lesser included offense
    instruction as long as "some evidence" supports giving the instruction. See State v.
    Armstrong, 
    299 Kan. 405
    , 432, 
    324 P.3d 1052
     (2014). Thus, a trial court errs by denying
    a defendant's requested lesser included offense instruction if, when viewed in the light
    most favorable to the defendant, some trial evidence supported giving the instruction.
    13
    Meanwhile, under the third step of this court's review process, the applicable
    harmlessness test depends on whether the defendant requested or objected to the giving
    of the disputed instruction before the trial court. If the defendant made the jury
    instruction argument below, the court must apply the test and applicable degree of
    certainty set forth in State v. Ward, 
    292 Kan. 541
    , Syl. ¶ 6, 
    256 P.3d 801
     (2011). State v.
    Louis, 
    305 Kan. 453
    , Syl. ¶ 1, 
    384 P.3d 1
     (2016). If the defendant is raising the jury
    instruction argument for the first time on appeal, however, the defendant must establish
    that the instruction error was clearly erroneous. This means that the defendant must
    firmly convince this court that the jury would have reached a different verdict but for the
    instruction error. McLinn, 307 Kan. at 318. So under the first step of this court's three-
    step review process, a defendant's failure to raise his or her jury instruction argument
    before the trial court does not prevent this court from considering the merits of the
    defendant's jury instruction argument on appeal. Instead, a defendant's failure to raise his
    or her jury instruction argument below merely affects this court's reversibility inquiry
    under the third step. 307 Kan. at 317.
    Finally, to the extent Smith's jury instruction arguments also involve statutory
    construction issues, statutory interpretation is a question of law over which we exercise
    unlimited review. State v. Alvarez, 
    309 Kan. 203
    , 205, 
    432 P.3d 1015
     (2019). In contrast,
    to the extent Smith's jury instruction arguments also involve sufficiency of the evidence
    issues, when considering such arguments, we must determine whether a rational fact-
    finder could have found the defendant guilty beyond a reasonable doubt when viewing all
    the evidence in the light most favorable to the State. State v. Chandler, 
    307 Kan. 657
    ,
    668, 
    414 P.3d 713
     (2018).
    Imperfect self-defense instructions
    K.S.A. 2020 Supp. 21-5222(a) states that "[a] person is justified in the use of force
    against another when and to the extent it appears to such person and such person
    14
    reasonably believes that such use of force is necessary to defend such person or a third
    person against such other's imminent use of unlawful force." Also, under K.S.A. 2020
    Supp. 21-5222(b), a person may use deadly force against another when and to the extent
    it appears to such person and "such person reasonably believes that such use of deadly
    force is necessary to prevent imminent death or great bodily harm to such person or a
    third person." As a result, K.S.A. 2020 Supp. 21-5222 provides that on another person's
    imminent use of unlawful or deadly force, a person may respond by using equal force to
    defend himself or herself. But per K.S.A. 2020 Supp. 21-5222's plain language, the
    person acting in self-defense must also "reasonably believe" that using such force was
    necessary for his or her protection.
    In the past, our Supreme Court has explained that the type of self-defense
    described under K.S.A. 2020 Supp. 21-5222(a)-(b) is "perfect self-defense." See State v.
    Kirkpatrick, 
    286 Kan. 329
    , 339, 
    184 P.3d 247
     (2008), abrogated on other grounds by
    State v. Barlett, 
    308 Kan. 78
    , 
    418 P.3d 1253
     (2018). When properly invoked by a
    defendant, "[p]erfect self-defense is a concept based on justification or excuse and
    operates as a complete defense." 286 Kan. at 339. Also, a defendant may argue perfect
    self-defense in response to "all crimes involving the use of force against another." 286
    Kan. at 339.
    Nevertheless, in addition to perfect self-defense, our Supreme Court has
    recognized that a defendant may argue imperfect self-defense. "Imperfect self-defense
    . . . is based not on justification, but on mitigation and, thus, operates only to reduce
    criminal culpability to a lesser crime." 286 Kan. at 339. This means that "[i]mperfect self-
    defense is 'not a true defense; it does not absolve a defendant of criminal liability. It is,
    rather, a lesser degree of the crime of homicide.'" 286 Kan. at 339. As a result,
    "[i]mperfect self-defense exists only as a lesser degree of homicide in voluntary
    manslaughter . . . and in involuntary manslaughter." 286 Kan. at 339. Specifically,
    imperfect self-defense exists as a lesser degree of homicide in voluntary manslaughter
    15
    under K.S.A. 2020 Supp. 21-5404(a)(2), which is the knowing killing of a human being
    "upon an unreasonable but honest belief that circumstances existed that justified use of
    deadly force." And it exists as a lesser degree of homicide in involuntary manslaughter
    under K.S.A. 2020 Supp. 21-5405(a)(4), which is the killing of a human being committed
    "during the commission of a lawful act in an unlawful manner."
    As a result, although perfect self-defense is a complete defense, imperfect self-
    defense is not. It merely allows the defendant to argue that he or she is guilty of voluntary
    manslaughter or involuntary manslaughter as opposed to first-degree or second-degree
    murder because the victim's initial aggression justified the use of some force in self-
    defense. Yet, by arguing imperfect self-defense, a defendant also necessarily concedes
    that the ultimate killing of the victim was illegal. That is to say, by arguing imperfect
    self-defense, the defendant alleges that the victim's initial aggression warranted a
    response in self-defense but at the same time concedes that the ultimate force he or she
    inflicted on the victim in self-defense was excessive under the facts of the case. See State
    v. James, 
    309 Kan. 1280
    , 1302, 
    443 P.3d 1063
     (2019).
    Also, it is important to note that although the elements of imperfect self-defense
    voluntary manslaughter and imperfect self-defense involuntary manslaughter seem
    similar, the key difference between the two statutes is whether the defendant ever had a
    valid self-defense claim. A defendant who has committed an imperfect self-defense
    voluntary manslaughter under K.S.A. 2020 Supp. 21-5404(a)(2) never had a valid self-
    defense claim. Instead, although that defendant honestly believed that he or she needed to
    use deadly force, that defendant's conduct was criminal because it was an unreasonable
    belief. Conversely, a defendant who has committed imperfect self-defense involuntary
    manslaughter under K.S.A. 2020 Supp. 21-5405(a)(4) originally had a valid self-defense
    claim but during the altercation with the victim ultimately used excessive force. Hence,
    the defendant engaged in a lawful act—self-defense—but engaged in this lawful act in an
    unlawful manner—excessive force.
    16
    As previously mentioned, during the jury instruction conference, Smith did not ask
    the trial court to instruct the jury on imperfect self-defense attempted involuntary
    manslaughter as a lesser included offense of his attempted intentional first-degree murder
    charge for the attempted killing of B.G. Smith did, however, ask the trial court to instruct
    the jury on imperfect self-defense involuntary manslaughter as a lesser included offense
    of his intentional first-degree murder charge for the killing of A.S. But the trial court
    denied this request by relying on State v. Bailey, 
    263 Kan. 685
    , 691, 
    952 P.2d 1289
    (1998), overruled on other grounds by State v. Davis, 
    283 Kan. 569
    , 
    158 P.3d 317
    (2006). It concluded that the facts of Smith's case were comparable to Bailey's case—a
    case where our Supreme Court affirmed the trial court's refusal to instruct on reckless
    involuntary manslaughter as a lesser included offense of intentional first-degree murder
    because the trial evidence indicated that Bailey killed the victim intentionally. Bailey, 
    263 Kan. at 688-91
    .
    Now, on appeal, Smith argues that the trial court committed reversible error when
    it failed to instruct the jury on imperfect self-defense involuntary manslaughter as a lesser
    included offense of his intentional first-degree murder charge for the killing of A.S. and
    imperfect self-defense attempted involuntary manslaughter as a lesser included offense of
    his attempted intentional first-degree murder charge for the attempted killing of B.G.
    Smith begins his analysis by taking issue with the trial court's reliance on Bailey to deny
    his imperfect self-defense involuntary manslaughter of A.S. instruction request. He
    argues that the trial court's reliance on Bailey was misplaced because the Bailey decision
    did not involve an imperfect self-defense jury instruction issue. He then stresses that the
    trial court had a duty to instruct the jury on all lesser included offenses he had requested
    for which there was some evidence to support his conviction. And he contends that his
    case is comparable to this court's recent decision in State v. Pulliam, 
    308 Kan. 1354
    ,
    1369-70, 
    430 P.3d 39
     (2018), where our Supreme Court held that the trial court erred by
    not instructing the jury on imperfect self-defense involuntary manslaughter. Based on this
    17
    comparison, Smith argues that the trial court had to give the jury the disputed imperfect
    self-defense instructions.
    The State responds that although both instructions were legally appropriate, the
    trial court did not err by failing to give either the imperfect self-defense involuntary
    manslaughter or the imperfect self-defense attempted involuntary manslaughter
    instructions because neither instruction was factually appropriate. See Pulliam, 308 Kan.
    at 1362 (noting that both voluntary manslaughter and involuntary manslaughter are lesser
    included offenses of first-degree murder). Although not entirely clear, it seems the State
    believes that the instruction on imperfect self-defense involuntary manslaughter as a
    lesser included offense of Smith's intentional first-degree murder charge for the killing of
    A.S. was factually inappropriate because by convicting him of voluntary manslaughter,
    the jury must have believed Smith's testimony about A.S. threatening his life while
    putting a gun against his head. Thus, according to the State, "there was no factual
    scenario" in which the jury could have found Smith's "use of deadly force was excessive"
    as to warrant the imperfect self-defense involuntary manslaughter instruction.
    Alternatively, the State argues that we should affirm Smith's voluntary manslaughter of
    A.S. conviction because any error stemming from the trial court's refusal to instruct the
    jury on imperfect self-defense involuntary manslaughter as a lesser included offense was
    harmless "[f]or the same reason that the instruction was not factually appropriate."
    As for Smith's argument that the trial court erred by not instructing the jury on
    imperfect self-defense attempted involuntary manslaughter as a lesser included offense of
    his attempted intentional first-degree murder charge for the attempted killing of B.G., the
    State asserts that this instruction was also factually inappropriate. It contends that under
    the trial evidence presented, the jury had to either accept or reject Smith's self-defense
    claim as it pertained to B.G. And it once again alternatively argues that we should affirm
    Smith's attempted voluntary manslaughter of B.G. conviction because any error
    18
    stemming from the trial court's failure to give the disputed instruction was harmless "[f]or
    the same reason that the instruction was not factually appropriate."
    Imperfect self-defense involuntary manslaughter
    As just noted, the State's analysis why Smith's requested instruction on imperfect
    self-defense involuntary manslaughter was factually inappropriate seemingly hinges on
    its contention that the jury must have believed Smith's testimony about A.S. threatening
    his life while putting a gun against his head given its decision to convict Smith of the
    voluntary manslaughter of A.S. It seems the State believes that because the jury
    convicted Smith of the voluntary manslaughter of A.S., the jury would never have
    convicted Smith of the imperfect self-defense involuntary manslaughter of A.S. even if it
    had been given this option.
    But how the jury may have interpreted the evidence is not the proper inquiry at
    this stage of this court's review process. Instead, when considering whether a disputed
    lesser included offense instruction is factually appropriate, both the trial court and this
    court must review whether some evidence supports giving the instruction. See Armstrong,
    299 Kan. at 432. So despite the State's apparent argument otherwise, the jury's thought-
    process during deliberations has no bearing on the factual appropriateness of Smith's
    requested instruction on imperfect self-defense involuntary manslaughter as a lesser
    included offense of his intentional first-degree murder charge for the killing of A.S.
    Also, Smith's complaint about the trial court's reliance on Bailey to deny his
    request for an instruction on imperfect self-defense involuntary manslaughter has merit.
    When it denied Smith's request for an instruction on imperfect self-defense involuntary
    manslaughter, the trial court explained that it was relying on the Bailey decision to deny
    the request because "[i]n that case, [our Supreme] Court reasoned that a defendant's
    actions in pointing a gun at an individual and pulling the trigger are intentional rather
    19
    than reckless." Clearly, however, the trial court's reliance on Bailey was misplaced
    because as argued by Smith, the Bailey decision involved the trial court's refusal to give a
    reckless involuntary manslaughter instruction, not an imperfect self-defense involuntary
    manslaughter instruction. 
    263 Kan. at 691
    . Thus, the trial court's sole justification for
    denying Smith's imperfect self-defense involuntary manslaughter instruction request was
    erroneous.
    Most importantly, though, Smith's reliance on Pulliam and the argument that some
    evidence supported the factual appropriateness of his imperfect self-defense involuntary
    manslaughter instruction request is persuasive.
    In Pulliam, our Supreme Court held that the trial court erred when it failed to
    instruct the jury on imperfect self-defense involuntary manslaughter as a lesser included
    offense to intentional second-degree murder simply because Pulliam had testified that "he
    heard a gun cock and thought that he was about to be shot in the back" by the victim. 308
    Kan. at 1369. Our Supreme Court explained the trial court had to instruct the jury on
    imperfect self-defense involuntary manslaughter because Pulliam's testimony constituted
    some evidence that he had a valid claim of self-defense against the victim but ultimately
    used excessive force by shooting the victim three or four times. 308 Kan. at 1369. Also,
    in reaching this holding, our Supreme Court explained that it was irrelevant whether other
    evidence, like Pulliam's previous statement to a detective, contradicted Pulliam's trial
    testimony about the victim being the initial aggressor. 308 Kan. at 1369.
    Thus, the Pulliam decision establishes that even when only the defendant's
    conflicting testimony supports giving an imperfect self-defense involuntary manslaughter
    instruction, the defendant's conflicting testimony constitutes some evidence requiring the
    trial court to instruct the jury on imperfect self-defense involuntary manslaughter as a
    lesser included offense. As applied to this case, this means that the trial court should have
    instructed the jury on imperfect self-defense involuntary manslaughter under K.S.A. 2016
    20
    Supp. 21-5405(a)(4) as a lesser included offense to Smith's intentional first-degree
    murder charge for the killing of A.S. as long as there was some evidence, even if that
    evidence was just Smith's conflicting testimony, indicating that A.S.'s initial aggression
    permitted Smith to react in self-defense but that Smith's ultimate use of force against A.S.
    in self-defense was excessive. See James, 309 Kan. at 1302. Here, not only did Smith's
    testimony constitute some evidence that he committed the imperfect self-defense
    involuntary manslaughter of A.S., but also his testimony about A.S. being the initial
    aggressor was far more detailed, consistent, and convincing than Pulliam's testimony
    about hearing the victim cock a gun.
    To review, Smith testified that he went over to the apartment on February 2, 2017,
    to talk to A.S. about potential repayment options for his $2,000 debt. He testified that
    after he entered the apartment with his barber tools, he noticed a black handgun on the
    kitchen counter. He testified that as soon as he and A.S. entered the master bedroom
    where he normally trimmed A.S.'s hair, A.S. became increasingly angrier about his
    inability to repay his debt, which resulted in him leaving the apartment to retrieve his
    laptop from his car to offer it as partial repayment for this debt. Also, he testified that as
    soon as he reentered the apartment with his black satchel containing the laptop, A.S. put a
    gun up against his head while stating: "[I]t's been six months, you got my money. You
    think I am stupid? You are trying to play me. . . . I don't need no fucking MacBook Pro. I
    got a MacBook Pro. I don't need no video. I need my money."
    Even so, Smith also explained that after he gained control of A.S.'s gun following
    a short struggle, he shot A.S. a total of six times. He testified that immediately after he
    gained control of the gun, he attempted to shoot A.S. in the buttocks, but instead shot
    A.S. in the back as he kicked A.S. forward. He explained that he then shot A.S. in the left
    shoulder because A.S., who was now lying on the floor, was pulling on his black satchel,
    attempting to drag him onto the floor as well. He explained that after shooting A.S. the
    second time, he decided to shoot A.S. until A.S. let go of his black satchel. When asked
    21
    why he did not leave after shooting A.S. the second time, Smith explicitly stated that after
    shooting A.S. twice, he continued to shoot him because he and A.S. "weren't done."
    In summary, Smith clearly testified that A.S. was the initial aggressor during their
    altercation inside the apartment on February 2, 2017. Because Smith testified that A.S.
    cursed at him as he put a gun against his head, some evidence supported Smith's claim of
    self-defense against A.S. As a result, the trial court needed to instruct the jury on perfect
    self-defense as stated under K.S.A. 2016 Supp. 21-5222(a)-(b). But at the same time,
    because Smith testified about shooting A.S. a total of six times, including five times after
    A.S. was already lying on the floor of the apartment suffering from his first gunshot
    wound, some evidence also supported Smith's claim of imperfect self-defense involuntary
    manslaughter.
    In fact, according to Dr. Handler's trial testimony, Smith's very first gunshot at
    A.S. pierced A.S.'s liver and was fatal absent quick medical intervention. Thus, some
    evidence supported that all but one of Smith's six gunshots into A.S.'s body were literal
    overkill. And notwithstanding this, there is certainly a strong argument that after Smith
    gained control of the gun, shot A.S. through the liver, and shot A.S. through the left
    shoulder, A.S. no longer posed an imminent danger to Smith even if A.S. continued to
    grasp hold of his black satchel. So at minimum, some evidence supported that Smith's
    final four gunshots into A.S.'s body were excessive. As a result, the trial court should
    have instructed the jury on imperfect self-defense involuntary manslaughter as a lesser
    included offense of Smith's intentional first-degree murder charge for the killing of A.S.
    Because the trial court erred when it denied Smith's request to instruct the jury on
    imperfect self-defense involuntary manslaughter as a lesser included offense of his
    intentional first-degree murder charge for the killing of A.S., we must consider whether
    the trial court's error was harmless. Recently, in State v. Becker, 
    311 Kan. 176
    , Syl. ¶ 4,
    
    459 P.3d 173
     (2020), our Supreme Court held that in noncapital cases, the trial court's
    22
    "failure to instruct on a lesser included offense does not impair a defendant's
    constitutional right to a trial by jury or right to due process." So the trial court's
    instructional error did not infringe upon Smith's constitutional rights. For us to uphold
    Smith's voluntary manslaughter conviction for the killing of A.S., we must determine
    whether there is a reasonable probability that the trial court's failure to instruct the jury on
    imperfect self-defense involuntary manslaughter as a lesser included offense of his
    intentional first-degree murder charge for the killing of A.S. affected the outcome of
    Smith's trial in light of the entire record. See Ward, 
    292 Kan. 541
    , Syl. ¶ 6; K.S.A. 2020
    Supp. 60-261. Also, as the party benefiting from the instruction error, the State carries the
    burden of establishing harmlessness. See State v. De La Torre, 
    300 Kan. 591
    , 609, 
    331 P.3d 815
     (2014) (holding that party benefiting from error carries burden to demonstrate
    harmlessness regardless of whether constitutional harmless error test or nonconstitutional
    harmless error test under K.S.A. 60-261 applies).
    But the entirety of the State's harmlessness argument is that any error stemming
    from the trial court's failure to instruct the jury on imperfect self-defense involuntary
    manslaughter was harmless "[f]or the same reason that the instruction was not factually
    appropriate." As explained in the preceding paragraphs, though, the instruction was
    factually appropriate based on Smith's testimony. Thus, the State's sole argument as to
    why the trial court's failure to instruct the jury on imperfect self-defense involuntary
    manslaughter is harmless is unpersuasive. Because the State carries the burden of
    establishing harmlessness, the State's failure to adequately brief its harmlessness
    argument is fatal. See State v. Lowery, 
    308 Kan. 1183
    , 1231, 
    427 P.3d 865
     (2018)
    (holding that an argument raised incidentally in a party's brief and not argued therein is
    deemed inadequately briefed and therefore abandoned).
    All the same, it is worth noting that even if the State had not abandoned its
    harmlessness argument, the State could not establish that the trial court's failure to give
    the imperfect self-defense involuntary manslaughter instruction was harmless beyond a
    23
    reasonable doubt. As recognized by the State in its brief, the jury rejected its theory that
    Smith shot A.S. with premeditation during a marijuana sale that went wrong; this is
    evidenced by the jury's decision to convict Smith of voluntary manslaughter and acquit
    Smith of using a communication facility to engage in a drug crime. But most importantly,
    by convicting Smith of the voluntary manslaughter of A.S. on a sudden quarrel as stated
    under K.S.A. 2016 Supp. 21-5404(a)(1), the jury necessarily believed Smith's testimony
    that he never intended on killing A.S. Otherwise, it would have convicted him under the
    first-degree intentional or second-degree intentional murder options. Thus, the fact that
    the jury convicted Smith of the on sudden quarrel voluntary manslaughter—the least
    severe form of homicide it was instructed on—suggests that the jury believed the most
    important part of Smith's defense—that he never went into the apartment with the
    intention of killing A.S. but instead acted in self-defense. As a result, the jury's rejection
    of the State's theory supports that had it been given the option, the jury may very likely
    have convicted Smith of the imperfect self-defense involuntary manslaughter of A.S.
    under K.S.A. 2016 Supp. 21-5405(a)(4) because it believed Smith had a valid claim of
    self-defense against A.S. but ultimately used excessive force while defending himself.
    In short, because the jury rejected the State's theory of its case by acquitting Smith
    of using a communication facility to engage in a drug crime and finding Smith guilty of
    voluntary manslaughter, it is very probable that if given the option to convict Smith of
    imperfect self-defense involuntary manslaughter under K.S.A. 2016 Supp. 21-5405(a)(4),
    the jury would have done so. Thus, the trial court's failure to instruct the jury on
    imperfect self-defense involuntary manslaughter was not harmless.
    For this reason, we reverse Smith's conviction for the on sudden quarrel voluntary
    manslaughter of A.S. under K.S.A. 2016 Supp. 21-5404(a)(1), vacate his corresponding
    sentence, and remand the case for a new trial on whether Smith committed (1) an on
    sudden quarrel voluntary manslaughter of A.S. under K.S.A. 2020 Supp. 21-5404(a)(1)
    or (2) an imperfect self-defense involuntary manslaughter of A.S. under K.S.A. 2020
    24
    Supp. 21-5405(a)(4). See K.S.A. 2020 Supp. 21-5110(e) (stating that "[i]n no case where
    a conviction for a lesser included crime has been invalidated, set aside, reversed or
    vacated shall the defendant be subsequently prosecuted for a higher degree of the crime
    for which such defendant was originally convicted"); see also In re Berkowitz, 
    3 Kan. App. 2d 726
    , Syl. ¶ 11, 
    602 P.2d 99
     (1979) (holding that "[w]hen a conviction is set aside
    any new trial is limited to the crime originally charged or, if conviction was on a lesser
    included offense, the included crime for which the defendant was convicted").
    Imperfect self-defense attempted involuntary manslaughter
    Once more, although the State agrees that the instruction would have been legally
    appropriate, the State asserts that an instruction on imperfect self-defense attempted
    involuntary manslaughter as a lesser included offense of Smith's attempted intentional
    first-degree murder charge for the attempted killing of B.G. was factually inappropriate
    because none of the evidence presented at Smith's trial supported a finding that Smith
    initially shot at B.G. in self-defense but then used excessive force. It contends that under
    the evidence presented at Smith's trial, the jury only had two options: It could accept
    Smith's self-defense claim or it could reject Smith's self-defense claim.
    According to Smith's trial testimony, he believed that B.G. was grabbing for the
    missing black handgun when she dropped her cell phone, but he never actually saw B.G.
    holding the black handgun. When asked, Smith explicitly testified that he had never seen
    a gun on B.G. before. Because the evidence indicates that Smith never actually saw B.G.
    with the black handgun before shooting towards B.G., Smith's imperfect self-defense
    claim against B.G. is much weaker than his imperfect self-defense claim against A.S. The
    entirety of his imperfect self-defense claim against B.G. hinges on a belief he had that
    B.G. was dropping her cell phone to grab for the missing black handgun. Thus, Smith's
    testimony that he believed B.G. was grabbing for the black handgun is evidence that
    Smith was attempting to knowingly kill B.G. on an unreasonable but honest belief that
    25
    she was reaching for the black handgun—an unreasonable but honest belief that
    circumstances existed justifying his use of deadly force as required to commit an
    imperfect self-defense attempted voluntary manslaughter under K.S.A. 2016 Supp. 21-
    5404(a)(2) and K.S.A. 2016 Supp. 21-5301 (the attempt statute)—which is the crime the
    jury ultimately convicted Smith of committing against B.G.
    Indeed, it was uncontroverted that Smith was the initial aggressor. Smith testified
    that he never saw B.G. holding the black handgun. On the other hand, B.G. testified that
    Smith shot at her five to six times in total, with one bullet making a hole in her sweatshirt
    as it grazed her right arm. The State introduced photos that showed a hole in the right arm
    of B.G.'s sweatshirt.
    Because Smith did not request the imperfect self-defense attempted involuntary
    manslaughter instruction, however, Smith must establish that the trial court's failure to
    give the instruction was clearly erroneous by firmly convincing us that the jury would
    have reached a different verdict but for the instruction error. See McLinn, 307 Kan. at
    318. In his brief, Smith argues that the trial court's failure to give this instruction as a
    lesser included offense of his attempted intentional first-degree murder charge for the
    attempted killing of B.G. was clearly erroneous because "[f]rom the evidence, the jury
    could find that [he] acted to defend himself from a perceived threat from [B.G.], but the
    circumstances did not justify his use of deadly force."
    But like the State's earlier harmlessness argument, Smith has inadequately briefed
    his argument that the trial court's failure to instruct the jury on imperfect self-defense
    attempted involuntary manslaughter constituted clear error. Smith's mere contention that
    the jury may have found him guilty of imperfect self-defense involuntary manslaughter
    because some evidence supported that he committed an imperfect self-defense attempted
    involuntary manslaughter against B.G. is conclusory. Smith has included no references to
    facts or analysis to support his argument. In a nutshell, Smith has raised his clear error
    26
    argument incidentally in his brief and has not argued it there. As a result, we reject
    Smith's argument because Smith has inadequately briefed and thus abandoned his ability
    to argue the trial court committed clear error by not instructing the jury on imperfect self-
    defense attempted involuntary manslaughter. See Lowery, 308 Kan. at 1231 (holding that
    argument raised incidentally in party's brief and not argued therein is deemed
    inadequately briefed and therefore abandoned).
    Because we have determined that there was no evidence justifying an imperfect
    self-defense attempted involuntary manslaughter instruction, we reject Smith's argument
    to reverse his attempted voluntary manslaughter conviction for the attempted killing of
    B.G.
    Forcible felony instruction
    Once more, K.S.A. 2020 Supp. 21-5222(a) allows a person to use force against
    "another when and to the extent it appears to such person and such person reasonably
    believes that such use of force is necessary to defend such person or a third person
    against such other's imminent use of unlawful force." And under K.S.A. 2020 Supp. 21-
    5222(b), a person may use deadly force against another when "such person reasonably
    believes that such use of deadly force is necessary to prevent imminent death or great
    bodily harm to such person or a third person." Yet, K.S.A. 2020 Supp. 21-5226(a)
    prohibits a person from using the force described under K.S.A. 2020 Supp. 21-5222(a)-
    (b), when that person uses such force while "attempting to commit, committing or
    escaping from the commission of a forcible felony." (Emphasis added.) As a result, a
    defendant cannot validly argue self-defense if that defendant took his or her defensive
    actions while engaging in a forcible felony.
    K.S.A. 2020 Supp. 21-5111(n) defines the term "forcible felony." It provides that
    whenever the term forcible felony appears in the Kansas Criminal Code, the term
    27
    encompasses "any treason, murder, voluntary manslaughter, rape, robbery, burglary,
    arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which
    involves the use or threat of physical force or violence against any person." (Emphasis
    added.) Thus, under the plain language of K.S.A. 2020 Supp. 21-5111(n), in addition to
    the listed felonies, a forcible felony includes all felonies involving threats of physical
    force or violence against another person.
    As previously mentioned, during the jury instruction conference, the trial court
    granted the State's request to give a forcible felony instruction regarding the evidence
    indicating Smith might have been involved in a marijuana sale over Smith's objection. As
    a result, in addition to instructing the jury on the elements of marijuana distribution, the
    trial court instructed the jury that "[a] person is not permitted to use physical force in
    defense of himself if he is attempting to commit, committing, or escaping after the
    commission of distribution of marijuana." Of note, the trial court provided the jury with
    an aider and abettor instruction; thus, the jury also had the option of rejecting Smith's
    self-defense claim if it believed Smith aided or abetted A.S. in the commission of selling
    marijuana.
    In his brief, Smith recognizes that K.S.A. 2020 Supp. 21-5226(a) authorized the
    trial court to give the forcible felony instruction had he killed A.S. during the commission
    of a forcible felony as meant under K.S.A. 2020 Supp. 21-5111(n)'s definition of forcible
    felony. And in passing, he also recognizes that our Supreme Court has held that the
    attempted sale of marijuana constitutes a forcible felony prohibiting a defendant from
    arguing self-defense in State v. Beltz, 
    305 Kan. 773
    , 781, 
    388 P.3d 93
     (2017). Still, Smith
    argues that the trial court erred when it gave the forcible felony instruction because the
    plain language of K.S.A. 2020 Supp. 21-5705—the unlawful distribution of a controlled
    substance statute—establishes that selling marijuana is not a forcible felony as meant
    under the plain language of K.S.A. 2020 Supp. 21-5111(n)'s forcible felony definition.
    He further contends that this error requires reversal of all his convictions.
    28
    To support this argument, Smith reviews the Kansas caselaw addressing what
    constitutes a forcible felony prohibiting a defendant from arguing self-defense. Following
    his review, he contends that Kansas appellate courts have wrongly conflated the term
    forcible felony as meant under K.S.A. 2020 Supp. 21-5111(n)'s forcible felony definition
    with the term "inherently dangerous felony" as meant under K.S.A. 2020 Supp. 21-
    5402(a)(2)—the felony-murder statute. According to Smith, under the plain language of
    K.S.A. 2020 Supp. 21-5111(n), only felonies that involve "violence, physical force, or the
    threat of either" can constitute forcible felonies that prohibit defendants from arguing
    self-defense. He thus concludes that the trial court erred when it gave the jury the forcible
    felony instruction because per K.S.A. 2020 Supp. 21-5705's plain language, selling
    marijuana is not a crime that involves violence, physical force, or the threat of either as
    required to constitute a forcible felony under K.S.A. 2020 Supp. 21-5111(n)'s forcible
    felony definition.
    The State counters that we are duty bound to follow our Supreme Court's
    precedent in Beltz. It argues that because the Beltz court ruled that the attempted sale of
    marijuana constituted a forcible felony, we must similarly rule that the actual sale of
    marijuana constitutes a forcible felony under K.S.A. 2020 Supp. 21-5226(a).
    Alternatively, the State argues that any error resulting from the trial court's decision to
    give the forcible felony instruction was harmless beyond a reasonable doubt. It contends
    that because the jury rejected its theory about Smith intentionally killing A.S. during a
    marijuana sale that went wrong, the trial court's forcible felony jury instruction had no
    bearing on the jury's verdicts.
    In short, we are persuaded by the State's arguments.
    In Beltz, our Supreme Court rejected Beltz' argument that the trial court erred
    when it denied his request to instruct the jury on self-defense because it concluded that
    Beltz killed the victim while committing the forcible felony of attempting to sell
    29
    marijuana. On appeal, Beltz argued that the trial court erred by rejecting his requested
    self-defense instruction because the attempted sale of marijuana was not a forcible felony
    under K.S.A. 2020 Supp. 21-5226(a). But the Beltz court determined that the trial court
    properly denied Beltz' self-defense instruction request because the attempted sale of
    marijuana is a forcible felony. 305 Kan. at 781. In reaching this holding, the Beltz court
    emphasized that Beltz and the other people involved in the disputed marijuana sale were
    all carrying guns. It then noted that Kansas courts have "consistently found that the sale
    of drugs under similar circumstances is a forcible felony." 305 Kan. at 781. So, in Beltz,
    our Supreme Court held that drug sales, especially drug sales that involve guns, constitute
    forcible felonies that prohibit a defendant from arguing self-defense as stated under
    K.S.A. 2020 Supp. 21-5226(a).
    Smith here freely acknowledged that it was not "unusual" for guns to be displayed
    throughout A.S.'s apartment. Indeed, in justifying his self-defense claim against B.G.,
    Smith testified that he believed B.G. had possession of the black handgun that he earlier
    saw on the apartment's kitchen countertop. Thus, he shot at B.G. because he thought she
    was reaching for this black handgun as he departed from the apartment.
    It is a well-known rule that this court is duty bound to follow our Supreme Court
    precedent absent some indication our Supreme Court is moving away from the previous
    holding in dispute. State v. Rodriguez, 
    305 Kan. 1139
    , 1144, 
    390 P.3d 903
     (2017). Since
    deciding Beltz in 2017, though, there has been no indication that our Supreme Court is
    moving away from its longstanding position that drug sales, especially drug sales
    involving guns, constitute forcible felonies under K.S.A. 2020 Supp. 21-5226(a).
    In summary, because the Beltz holding remains good law, we are duty bound to
    follow Beltz' precedent that drug sales, particularly those involving guns, constitute
    forcible felonies under K.S.A. 2020 Supp. 21-5226(a). Thus, we rely on the Beltz holding
    30
    to reject Smith's argument that the trial court erred by giving the forcible felony jury
    instruction.
    Notwithstanding the preceding, any error stemming from the trial court's giving of
    the forcible felony instruction was harmless beyond a reasonable doubt. This is because
    by acquitting Smith of using a communication facility to engage in a drug crime, it
    necessarily follows that the jury rejected its argument that Smith intentionally killed A.S.
    during a marijuana sale, which is a forcible felony, that went wrong. Otherwise, the jury
    would have convicted Smith of using a communication facility to engage in a drug crime
    based on the text messages recovered from A.S.'s cell phone that the State offered as
    evidence that Smith came over to the apartment the afternoon of February 2, 2017, to buy
    marijuana from A.S. Because the jury rejected this theory, it follows that the jury also
    disregarded the forcible felony instruction―stating that Smith was not permitted to use
    force in self-defense while also committing the forcible felony of selling marijuana.
    In short, we reject Smith's request to reverse his convictions based on the trial
    court's giving of the forcible felony jury instruction for two reasons: (1) because the
    Beltz decision establishes that the trial court properly gave the forcible felony instruction
    and (2) because any error stemming from the trial court's giving of the forcible felony
    instruction was otherwise harmless beyond a reasonable doubt.
    Misdemeanor child endangerment instruction
    To commit aggravated child endangerment under K.S.A. 2020 Supp. 21-
    5601(b)(1), a person must "recklessly caus[e] or permit[] a child under the age of 18
    years to be placed in a situation in which the child's life, body or health is endangered."
    (Emphasis added.) Yet, to commit misdemeanor child endangerment under K.S.A. 2020
    Supp. 21-5601(a), a person must have "knowingly and unreasonably caus[ed] or
    permit[ed] a child under the age of 18 years to be placed in a situation in which the
    31
    child's life, body or health may be endangered." (Emphasis added.) Thus, the difference
    between aggravated child endangerment and misdemeanor child endangerment is
    whether the defendant actually endangered the child's life, body, or health. See State v.
    White, 
    55 Kan. App. 2d 196
    , 201, 
    410 P.3d 153
     (2017).
    In his final jury instruction argument, Smith contends that although he never
    requested an instruction on misdemeanor child endangerment, the trial court clearly erred
    by failing to give the instruction as a lesser included offense of his aggravated child
    endangerment charge for endangering K.S. Although Smith frames his argument as an
    independent jury instruction issue, a review of Smith's argument establishes that it hinges
    on his contention that insufficient evidence supported his aggravated child endangerment
    conviction.
    In making this argument, Smith stresses that in State v. Herndon, 
    52 Kan. App. 2d 857
    , Syl. ¶ 7, 
    379 P.3d 403
     (2016), a panel of this court held that to convict a defendant
    of aggravated child endangerment, "the State must prove not only that the defendant's
    conduct was unjustifiable and a gross deviation from the reasonable standard of care, but
    also that the defendant acted with the conscious realization that there was a substantial
    risk that such conduct would place a child in peril." Relying on this holding, Smith
    contends that insufficient evidence supported his aggravated child endangerment
    conviction because he testified that he was unaware of K.S.'s presence when he shot A.S.
    in self-defense. Smith further argues that insufficient evidence supported his conviction
    because the fact that law enforcement found K.S. next to A.S.'s dead body does not mean
    that he actually placed K.S.'s life, body, or health in danger. Based on these arguments,
    Smith concludes (1) that the trial court had to instruct the jury on misdemeanor child
    endangerment and (2) that the failure to give this instruction constituted reversible error.
    The State counters that it presented ample evidence to support Smith's aggravated
    child endangerment conviction. It contends that given the weight of this evidence,
    32
    although an instruction on misdemeanor aggravated child endangerment was legally
    appropriate, it was not factually appropriate. It therefore asks us to reject Smith's
    argument that the trial court erred by not instructing the jury on misdemeanor child
    endangerment as a lesser included offense of his aggravated child endangerment charge
    for endangering K.S.
    As with Smith's forcible felony instruction argument, we are persuaded by the
    State's arguments.
    The State here correctly contends that there was overwhelming evidence
    supporting Smith's aggravated child endangerment conviction. Smith's argument relies on
    his own trial testimony that he never realized K.S. was nearby when he shot A.S. while at
    the same time ignoring the strength of the State's circumstantial evidence indicating that
    he actually endangered K.S.'s life, body, and health. Indeed, outside of Smith's trial
    testimony, all of the evidence before the jury suggested that Smith knew K.S. was nearby
    when he shot A.S. The law enforcement officers who initially arrived at the apartment, all
    testified about finding K.S. lying on her stomach next to A.S.'s dead body. The State's
    forensic biologist testified that A.S.'s blood caused the staining found on K.S.'s clothing.
    Also, Santoro testified about the discovery of a spent bullet underneath K.S.'s baby
    bouncer in the apartment's living room.
    Smith complains that the fact that law enforcement found K.S. next to A.S.'s dead
    body does not mean that he placed K.S.'s life, body, or health in danger. Nevertheless, the
    location of K.S. next to the body of her dead father and the other evidence just mentioned
    constituted significant circumstantial evidence that K.S. was nearby when the shooting
    occurred. See State v. Logsdon, 
    304 Kan. 3
    , 25, 
    371 P.3d 836
     (2016) (explaining that
    even gravest offense may be entirely supported by circumstantial evidence so long as
    such evidence allowed fact-finder to make reasonable inference of guilt). Stated another
    way, all of this evidence constituted significant circumstantial evidence that Smith placed
    33
    K.S.'s life, body, or health in danger as required to commit aggravated child
    endangerment under K.S.A. 2016 Supp. 21-5601(b)(1).
    Plainly, this evidence, in and of itself, was substantial enough to support his
    aggravated child endangerment conviction. See State v. Killings, 
    301 Kan. 214
    , 223, 
    340 P.3d 1186
     (2015) (holding trial court's erroneous failure to instruct on lesser included
    offense harmless beyond a reasonable doubt when overwhelming evidence supported
    defendant's conviction). When one additionally considers Smith's recorded jail phone call
    statement that A.S. "pull[ed] a weapon out with a baby in his hands," it is readily
    apparent that Smith actually knew A.S. was holding K.S. when he shot him regardless of
    his trial testimony. And even if we were to ignore this evidence, according to Smith's
    own testimony, he not only abandoned K.S. after fatally shooting A.S., but he also failed
    to check on K.S.'s welfare, despite hearing her crying, when he reentered the apartment to
    recover his belongings after initially driving away. This constitutes overwhelming
    evidence that Smith recklessly caused or permitted K.S. to be placed in a situation in
    which her life was actually endangered as required to be convicted of aggravated child
    endangerment under K.S.A. 2016 Supp. 21-5601(b)(1) regardless of his self-defense
    claim against A.S. during the shooting inside the apartment.
    Is Smith's criminal possession of a firearm conviction unconstitutional?
    The jury convicted Smith of being a criminal in possession of a firearm contrary to
    K.S.A. 2016 Supp. 21-6304(a)(1). K.S.A. 2020 Supp. 21-6304(a)(1) bars people who
    have been previously convicted of a person felony from possessing a firearm if they
    committed their prior person felony with a firearm. Also, violation of K.S.A. 2020 Supp.
    21-6304(a)(1) constitutes a severity level 8, nonperson felony. K.S.A. 2020 Supp. 21-
    6304(b).
    34
    In his next argument on appeal, although Smith concedes that he violated the plain
    language of K.S.A. 2020 Supp. 21-6304(a)(1), he contends that we should still reverse his
    criminal possession of a firearm conviction because it is unconstitutional in light of the
    2010 amendment to section 4 of the Kansas Constitution Bill of Rights. Smith argues that
    the 2010 amendment to section 4 "never allows for the criminalization of mere
    possession" of a firearm because it states that every Kansan has the "[i]ndividual right to
    bear arms." In making this argument, Smith emphasizes the differences between the
    amended section 4 and the Second Amendment to the United States Constitution. He
    contends that we should interpret the amended section 4 as providing Kansans a broader
    right to firearm possession than the right to firearm possession under the Second
    Amendment because the Second Amendment merely discusses "the right of the people to
    keep and bear arms." (Emphasis added.)
    Nevertheless, as contended by the State, we reject Smith's argument that his
    criminal possession of a firearm conviction violates section 4 of the Kansas Constitution
    Bill of Rights because he is raising it for the first time on appeal.
    Whether an appellant has preserved an argument for appeal constitutes a question
    of law over which this court exercises unlimited review. State v. Haberlein, 
    296 Kan. 195
    , 203, 
    290 P.3d 640
     (2012). Generally, this court does not consider arguments when
    raised by appellants for the first time on appeal. State v. Phillips, 
    299 Kan. 479
    , 493, 
    325 P.3d 1095
     (2014). But there are three exceptions to this rule: (1) when "[t]he newly
    asserted theory involves only a question of law arising on proved or admitted facts and is
    determinative of the case"; (2) when "consideration of the theory is necessary to serve the
    ends of justice or to prevent the denial of fundamental rights"; and (3) when "the [trial]
    court is right for the wrong reason." 299 Kan. at 493.
    In his brief, Smith recognizes that he never challenged his criminal possession of a
    firearm conviction as unconstitutional before the trial court. Even so, he asks us to
    35
    consider his newly raised constitutional challenge under the first and second exceptions
    to the general rule about not considering arguments raised for the first time on appeal.
    That is, he asserts that we should consider his constitutional challenge for the first time
    on appeal because it only involves a question of law arising on proved or admitted facts
    that is finally determinative of the case and because its consideration is necessary to
    prevent the denial of his fundamental right to bear arms.
    But Smith's preservation argument ignores that even if we could invoke one of the
    exceptions to the general rule about not considering arguments raised for the first time on
    appeal, we still have no duty to consider such arguments. In State v. Gray, 
    311 Kan. 164
    ,
    Syl. ¶ 1, 
    459 P.3d 165
     (2020), our Supreme Court held: "The decision to review an
    unpreserved claim under an exception is a prudential one. Even if an exception would
    support a decision to review a new claim, [we have] no obligation to do so." Relying on
    this rule, our Supreme Court "decline[d] to utilize any potentially applicable exception to
    review Gray's new [identical offense doctrine] claim." 311 Kan. at 170. Also, it explained
    that it would not review Gray's newly raised identical offense doctrine claim because by
    not raising this argument before the trial court, Gray "deprived the trial judge of the
    opportunity to address the issue in the context of this case" even though "such an analysis
    would have benefited [its] review" on appeal. 311 Kan. at 170.
    Here, we rely on Gray's precedent to decline Smith's request to consider his
    criminal possession of a firearm conviction constitutional challenge for the first time on
    appeal. In a nutshell, because Smith failed to raise his constitutional challenge before the
    trial court, we lack the necessary factual, legal, and historical analysis in the record to
    adequately address Smith's constitutional challenge. See also State v. Hastings,
    No. 122,184, 
    2021 WL 2748215
    , at *2 (Kan. App. 2021) (unpublished opinion)
    (declining to consider Hastings' identical constitutional challenge to his criminal
    possession of a firearm conviction for first time on appeal relying on Gray); State v.
    Valdez, No. 121,053, 
    2021 WL 1324023
    , at *3 (Kan. App. 2021) (unpublished opinion)
    36
    (declining to consider Valdez' identical constitutional challenge to his criminal
    possession of a firearm conviction for first time on appeal because his failure to raise
    argument below created inadequate record); State v. Miner, No. 122,372, 
    2021 WL 401282
    , at *2 (Kan. App. 2021) (unpublished opinion) (declining to consider Miner's
    identical constitutional challenge to his criminal possession of a firearm conviction for
    first time on appeal relying on Gray); State v. Pugh, No. 120,929, 
    2021 WL 218900
    , at
    *4-5 (Kan. App. 2021) (unpublished opinion) (declining to consider Pugh's identical
    constitutional challenge to his criminal possession of a firearm conviction for first time
    on appeal because his failure to raise argument below created inadequate record); and
    State v. Johnson, No. 121,187, 
    2020 WL 5587083
    , at *5 (Kan. App. 2020) (unpublished
    opinion) (declining to consider Johnson's identical constitutional challenge to his criminal
    possession of a firearm conviction for first time on appeal because his failure to raise
    argument below created inadequate record).
    So despite Smith's argument otherwise, we affirm his criminal possession of a
    firearm conviction.
    Did the trial court err when sentencing Smith?
    The KSGA, K.S.A. 2020 Supp. 21-6801 et seq., creates a standardized sentencing
    scheme based on the severity of an offender's current crime of conviction and criminal
    history. K.S.A. 2020 Supp. 21-6814(a)-(c) provides that before relying on an offender's
    criminal history to enhance his or her sentence, the offender must either admit his or her
    criminal history in open court or the sentencing court must find that the State established
    the offender's criminal history by a preponderance of the evidence. On the other hand,
    section 5 of the Kansas Constitution Bill of Rights states: "The right of trial by jury shall
    be inviolate." Also, when analyzing this language, our Supreme Court has consistently
    held that "'[s]ection 5 preserves the jury trial right as it historically existed at common
    37
    law when our state's constitution came into existence.'" Hilburn v. Enerpipe Ltd., 
    309 Kan. 1127
    , 1133, 
    442 P.3d 509
     (2019).
    Here, it is undisputed that the trial court relied on Smith's criminal history score of
    A to enhance his sentences for each of his crimes. For example, by categorizing Smith as
    having a criminal history score of A, the trial court was able to impose a 233-month
    prison sentence on Smith for his primary crime of the on sudden quarrel voluntary
    manslaughter of A.S., which was his standard presumptive sentence under the KSGA.
    Had the sentencing court not relied on Smith's criminal history to enhance his voluntary
    manslaughter sentence, Smith's standard presumptive sentence under the KSGA for
    committing the on sudden quarrel voluntary manslaughter of A.S. would have been 59
    months' imprisonment. See K.S.A. 2020 Supp. 21-5404(a)(1), (b); K.S.A. 2020 Supp. 21-
    6804(a).
    In his final argument on appeal, Smith asserts that the trial court violated his jury
    trial right under section 5 of the Kansas Constitution Bill of Rights when it used his
    criminal history to enhance the severity of his underlying sentences. In making this
    argument, he emphasizes that our Supreme Court has consistently held that section 5
    preserves the jury trial right as it existed at common law. But he further contends that the
    common-law jury trial right included an offender's right to have his or her criminal
    history proven to a jury beyond a reasonable doubt before the sentencing court could rely
    on such criminal history to enhance his or her sentence. He therefore concludes that
    section 5 preserves an offender's common-law jury trial right to have his or her criminal
    history proven to a jury beyond a reasonable doubt before the sentencing court could use
    that offender's criminal history to enhance his or her sentence. And he argues that this, in
    turn, means that the current KSGA sentencing scheme violates section 5 since it allows
    the sentencing court to rely on an offender's criminal history to enhance the offender's
    sentence without first proving that offender's criminal history to a jury beyond a
    reasonable doubt. As a result, he asks us to vacate his sentences and remand the case to
    38
    the trial court with directions to resentence him without consideration of his criminal
    history.
    But as the State counters in its brief, Smith's constitutional challenge to the
    validity of his sentences is unpersuasive because he is raising it for the first time on
    appeal and because it is otherwise premised on a flawed legal argument. Once again,
    whether an appellant has properly preserved an argument for appeal and whether a statute
    is unconstitutional constitute questions of law over which this court exercises unlimited
    review. Haberlein, 296 Kan. at 203; Dissmeyer v. State, 
    292 Kan. 37
    , 39, 
    249 P.3d 444
    (2011).
    In his brief, Smith recognizes that he is raising this constitutional challenge for the
    first time on appeal. Still, he asks us to consider his argument for the first time on appeal
    under the exceptions allowing for such consideration when the newly raised issue
    involves only a question of law arising on proved or admitted facts that is finally
    determinative of the case and when consideration of the newly raised issue is necessary to
    serve the ends of justice. But we decline Smith's request. See Gray, 311 Kan. at 170
    (holding that even if exception to general rule against considering issues for first time on
    appeal applied, appellate courts have no obligation to apply such exception). In short, as
    with his constitutional challenge to his criminal possession of a firearm conviction,
    Smith's failure to raise this argument below means that the record, and therefore this
    court, lacks the benefit of factual, legal, and historical analysis to adequately address his
    current constitutional challenge to his sentences.
    Affirmed in part, reversed in part, vacated in part, and remanded for a new trial on
    whether Smith committed (1) an on sudden quarrel voluntary manslaughter of A.S. under
    K.S.A. 2020 Supp. 21-5404(a)(1) or (2) an imperfect self-defense involuntary
    manslaughter under K.S.A. 2020 Supp. 21-5405(a)(4).
    39