State v. Seba ( 2016 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 113,149
STATE OF KANSAS,
Appellee,
v.
BRYANT A. SEBA,
Appellant.
SYLLABUS BY THE COURT
1.
When a homicidal act is directed against one other than the person killed, the
responsibility of the actor is the same as it would have been had the act been completed
against the intended victim.
2.
The transferred intent doctrine does not offend K.S.A. 2015 Supp. 21-5402,
Kansas' first-degree murder statute; it does not change or conflict with the statute. Rather,
the doctrine merely clarifies that evidence of a defendant's intent to kill a particular
person can be sufficient to prove the mental state element of first-degree premeditated
murder even if a person other than the intended victim is murdered at the defendant's
hands.
3.
Under the facts of this case, the transferred intent doctrine provided sufficient
evidence to support convictions for both the death of a pregnant unintended victim and,
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under K.S.A. 2015 Supp. 21-5419, the death of her "unborn child," and the district court
properly instructed the jury on the doctrine.
4.
An intentional and premeditated killing is a first-degree murder. The lesser
included crime of reckless second-degree murder is a killing done unintentionally but
recklessly under circumstances manifesting extreme indifference to the value of human
life. A person acts recklessly by consciously disregarding a substantial and unjustifiable
risk that circumstances exist or that a result will follow, and such disregard constitutes a
gross deviation from the standard of care which a reasonable person would exercise in the
situation. The distinction between reckless second-degree murder and first-degree
premeditated murder is, at its core, the intent to kill requirement of first-degree
premeditated murder.
5.
A defendant who argues that a district court erred in failing to instruct a jury on
the lesser included offenses of reckless second-degree murder and reckless involuntary
manslaughter fails to establish clear error—i.e., fails to firmly convince the appellate
court that the jury would have reached a different result—when overwhelming evidence
supports a conclusion that the defendant intended to kill a human being and premeditated
the killing.
6.
A first-degree premeditated murder conviction requires death to have been the
intended result of an act. Nevertheless, a jury instruction explaining that a "defendant acts
intentionally when it is the defendant's desire or conscious objective to do the act
complained about by the State"—rather than saying that "the defendant acts intentionally
2
when it is the defendant's desire or conscious objective to cause the result complained
about by the State"—is legally appropriate when the instruction also informs the jury it
must find that the defendant "intentionally killed." Taken as a whole, the instruction
properly informs the jury of the intent requirement.
7.
Under K.S.A. 2015 Supp. 21-5404(a)(2), imperfect self-defense voluntary
manslaughter is knowingly killing a human being upon an unreasonable but honest belief
that circumstances existed that justified use of deadly force in defense of a person, in
defense of a dwelling, or in defense of other property.
8.
An unreasonable but honest belief that circumstances existed that justified deadly
force will not support a claim of imperfect self-defense unless the circumstances, if
reasonably believed, would have supported a claim of perfect self-defense under K.S.A.
2015 Supp. 21-5222.
9.
Because the legislature determined voluntary manslaughter required a knowing
mental state—meaning voluntary manslaughter is a general intent crime—voluntary
intoxication is not legally available as a defense.
10.
When considering an issue challenging a district court's decision to admit
photographs into evidence, an appellate court must first determine whether they are
relevant. Evidence is relevant, meaning it is admissible, if it has any tendency in reason to
prove any material fact. Nevertheless, even relevant evidence can be inadmissible if a
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substantial risk of unfair prejudice outweighs the evidence's probative value. If a party
argues that the photographs are overly repetitious, gruesome, or inflammatory, that is to
say, prejudicial, the standard of review is abuse of discretion.
11.
Autopsy photographs demonstrating the fact and manner of death are relevant and
admissible even if the cause of death is not contested. Moreover, photographs are
relevant if they show the extent, nature, and number of wounds inflicted or if the
photographs assist the pathologist in explaining the cause of death.
12.
Gruesome crimes result in gruesome photographs, but accurate representations of
a crime typically do not unduly prejudice a defendant.
13.
In a cumulative error analysis, an appellate court aggregates all errors and, even
though those errors would individually be considered harmless, analyzes whether their
cumulative effect on the outcome of the trial is such that collectively they cannot be
determined to be harmless.
14.
In making the assessment of whether cumulative errors are harmless error, an
appellate court examines the errors in the context of the record as a whole considering
how the district court dealt with the errors as they arose (including the efficacy, or lack of
efficacy, of any remedial efforts); the nature and number of errors committed and their
interrelationship, if any; and the strength of the evidence. No prejudicial error may be
4
found upon this cumulative effect rule if the evidence is overwhelming against the
defendant.
Appeal from Pratt District Court; FRANCIS E. MEISENHEIMER, judge. Opinion filed September 30,
2016. Affirmed.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.
Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with him on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.: Following a period of escalating tension between Bryant A. Seba
and others, Seba fired nine shots toward those with whom he had been fighting. He killed
a pregnant bystander and repeatedly shot one of the men, resulting in the man's paralysis.
The State charged Seba with two counts of first-degree premeditated murder. One of
Seba's two first-degree premeditated murder counts was based on Alexa's law, which
defines murder to include the killing of an "unborn child"—defined in K.S.A. 2015 Supp.
21-5419(a)(2) as "a living individual organism of the species homo sapiens, in utero, at
any stage of gestation from fertilization to birth." The State also charged Seba with one
count of attempted first-degree murder. The jury convicted him of all three charges.
To prove the intent requirement of both first-degree premeditated murder counts,
the State used the transferred intent doctrine, arguing Seba premeditated the murder of
the men with whom he had been fighting and his guilt was the same as it would have
been had he hit his intended targets. On appeal, Seba argues that the doctrine of
transferred intent does not apply in this case and that both counts can only be charged
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(and lead to convictions of) first-degree felony murder—i.e., convictions based on deaths
that occurred during the course of some other crime. Alternatively, he argues the
transferred intent doctrine can only apply to the count for the murder of the bystander and
not to the Alexa's law count.
Seba also contends the district court clearly erred by failing to instruct the jury on
the lesser included offenses of reckless second-degree murder and reckless involuntary
manslaughter; incorrectly instructing the jury on the definition of "intentionally" in the
context of first-degree murder; failing to instruct the jury on the lesser included offense of
imperfect self-defense voluntary manslaughter; and incorrectly instructing the jury that
voluntary intoxication is not a defense to voluntary manslaughter and attempted
voluntary manslaughter. In addition, raising an issue not related to the jury instruction,
Seba claims the district court erred by admitting certain autopsy photographs. Finally, he
argues that the cumulative effect of these errors denied him a fair trial.
We reject Seba's arguments regarding transferred intent and we also conclude
Seba fails to establish clear error in the jury instructions. Further, we hold the district
court did not err in admitting the photographs about which he complains. Finally, we
conclude Seba is not entitled to a new trial because of cumulative error. We accordingly
affirm Seba's convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
Seba and Matthew Rost had been arguing throughout the day of July 24, 2013.
According to Seba, he sold Rost a video game and Rost refused to pay the $25 he owed.
The men exchanged several disparaging text messages, some with racial overtones.
Tensions escalated that evening when Seba, who had been drinking, sat on his front porch
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and yelled racial slurs towards Rost's apartment complex, which was one house away.
Witnesses at the residence sandwiched between Seba's house and Rost's apartment
testified to hearing Seba repeatedly call Rost a "nigger lover."
Rost lived with his girlfriend, Tiffany Foreman, an African American. At one
point during Seba's onslaught of racial slurs, Seba walked down to Rost's apartment and
kicked the door. Foreman, alone in the apartment at the time, became frightened and
called her brother to ask if he could contact her cousin and ask him to come over and stay
with her so she was not alone. After kicking the door, Seba returned to his house, got on
his motorcycle, and rode it around the block a few times, revving the engine in front of
Rost's apartment.
Rost later returned to his apartment. Another group soon arrived—Foreman's two
cousins, her brother, and a friend. Foreman told the men Seba had tried to kick in the
apartment door, and Rost vaguely indicated that he and Seba had been arguing. One of
Foreman's cousins, Brandon Wright, walked down the sidewalk toward Seba's house and
asked Seba, who was standing on his porch, why he had kicked Foreman's door. Seba
called Brandon Wright a "nigger" and threatened to shoot him. During this exchange,
Brandon Wright's brother, Zachary, crept along some shrubbery in front of Seba's porch,
got behind Seba, and pushed him off the porch. Seba and the Wright brothers began to
fight in the front yard.
Neighbors at the residence in between Seba's house and Rost's apartment had been
aware of the escalating conflict throughout the evening. When the fight between Seba and
the Wright brothers started, one of those neighbors went over to break it up. He pulled the
men apart, at which point Seba got up and ran back into his house. As he fled, he said
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something like, "I'm going to kill you motherfuckers," or, "You are going to get shot,
nigger."
Around the same time Seba was escaping into his house, Alexandria Duran—who
also lived next door to Seba and was the niece of the man who had interceded in the
fight—stepped in to try to calm the situation between the Wrights and her uncle. Zachary
Wright and others fled; they later would say they ran because they had heard Seba's
threats and knew he was a good shot. As Duran tried to ease tensions between her uncle
and Brandon Wright, Seba exited his front door, stepped onto his porch, and fired a shot
from his .22 caliber rifle, which had been modified for accuracy. The shot hit Duran in
the head at a downward trajectory, killing her and ultimately killing her otherwise healthy
fetus, which she had been carrying for 12 to 15 weeks.
Seba paused, then fired eight more shots. Five of Seba's shots hit Brandon Wright
on the back of his body, leaving him lying on the property line about 20 feet from Seba's
house and paralyzing him from the waist down. Immediately after the shooting, Seba
made two phone calls. He called his father and told him that he had shot "a couple black
guys." Seba also called a friend with whom he played online video games. He told his
friend he had shot two guys and he was going to jail.
A law enforcement officer soon arrived at the scene. The officer found Seba
outside his house with his hands above his head. Seba told the officer, who was
approaching with his weapon drawn, "I'm the shooter. I'm the one that shot them." Seba
told the officer he had been attacked by two men who pulled a gun on him, and he also
told the officer he left the .22 rifle in the yard. Although the officer noticed an odor of
alcohol about Seba, Seba was coherent, easy to understand, and could walk on his own.
A blood draw just over 2 hours later revealed Seba's blood-alcohol concentration to be
8
.17 grams per 100 milliliters of blood, which could have been higher or lower than it was
at the time of the shooting, depending on unknown absorption and elimination rates.
Seba gave investigators two interviews at the station. During the first interview,
which occurred at 2:24 the morning after the shooting, Seba told investigators the fight
started because Rost owed him money for a video game. He said a group came over from
Rost's apartment and pulled him off his porch. He was able to escape into his house, run
up his stairs, get his .22 competition rifle out of its case, and charge it as he came back
downstairs. The group of men pulled him onto his porch. He said something like, "Attack
me now, nigger," and the group pulled him off his porch for the second time. He said he
shot at them to try to get them off of him. He also explained to investigators that he had
repeatedly used the "N word" to try to get everybody riled up.
Upon further investigation, Seba's initial story did not line up with the physical
evidence. More than 24 hours later—after Seba's family had told him about Duran's
death—Seba agreed to a second interview. Remorseful, Seba said his first statement to
investigators was "bullshit." He again told investigators the altercation began with Rost
and the video game, and he now said he remembered a group coming to his house after
he kicked Foreman and Rost's door. He also recounted getting pushed down and kicked
and then fleeing into his house to get his gun.
Seba could not explain why he came back outside. He admitted he had not been
pulled off the porch when he came back from getting his gun. When questioned, Seba
said it was "hard to remember most of it 'cause [he] was so drunk." He said he "wasn't
thinking" but was upset with the Wrights and he was "just trying to scare them." He
thought he was aiming above them. He saw that the second person he shot was facing
away from him when he shot. Weeping, Seba told investigators that he could not stop
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"seeing pictures of that girl falling down." From what he could remember, Duran was
trying to help him, and she was shot because she happened to be standing next to
Brandon Wright.
After a jury trial, the district court instructed the jury that it could find Seba not
guilty; guilty as charged—that is, guilty of first-degree premeditated murder of Duran,
first-degree premeditated murder under Alexa's law, and attempted first-degree
premeditated murder of Brandon Wright; or guilty of lesser included offenses. The jury
found Seba guilty as charged. The district court imposed sentences totaling 50 years: two
consecutive life sentences for Seba's two first-degree premeditated murder convictions
and a 272-month concurrent sentence for attempted first-degree premeditated murder.
Seba appealed to this court, and jurisdiction is proper under K.S.A. 2015 Supp. 22-
3601(b)(3) (direct appeal to supreme court when life sentence imposed).
ANALYSIS
Seba raises seven arguments, which we have taken the liberty of reordering. We
will begin our analysis with Seba's issue regarding transferred intent, which he phrases as
both a sufficiency issue and a jury instruction error. We will then address his other
instruction errors, his claim the district court erred in admitting some autopsy
photographs, and, finally, his claim that cumulative error denied him a fair trial.
Seba raises all of his jury instruction issues for the first time on appeal.
Consequently, we apply the same standard of review to each of these claims. Under that
standard, we first review de novo whether the complained-of jury instruction was legally
and factually appropriate. State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012).
If the court erred by (1) giving an instruction that was not legally or factually appropriate,
or (2) not giving an instruction that was legally and factually appropriate, we then
10
determine whether the error was harmless. 295 Kan. at 510. Where instruction errors are
raised for the first time on appeal, as here, the district court's failure to give a legally and
factually appropriate instruction will result in reversal only if the failure was clearly
erroneous. K.S.A. 2015 Supp. 22-3414(3); State v. Breeden, 297 Kan. 567, 581, 304 P.3d
660 (2013). To establish such clear error, Seba must firmly convince us the jury would
have reached a different result without the error. Williams, 295 Kan. at 516.
ISSUE 1: The evidence was sufficient to support the jury finding that Seba possessed the
requisite intent, and the district court did not err in providing the jury with
instructions on transferred intent.
We first consider Seba's argument that the evidence was insufficient to prove the
intent element of either first-degree premediated murder count and that the district court
erred in instructing the jury on the State's theory that Seba's intent could be proven
through the transferred intent doctrine. Seba does not contend the instructions misstated
the transferred intent doctrine; rather, he contends the doctrine was not legally and
factually appropriate under the facts of this case and that without the doctrine there is
insufficient evidence to establish first-degree premeditated murder.
We review the sufficiency of the evidence in the light most favorable to the State
and determine whether a rational factfinder could have found the defendant guilty beyond
a reasonable doubt. This review does not involve reweighing the evidence, assessing the
credibility of witnesses, or resolving conflicts in the evidence. State v. Bolze-Sann, 302
Kan. 198, 203, 352 P.3d 511 (2015).
To frame this issue, we begin with K.S.A. 2015 Supp. 21-5402(a), which defines
murder in the first degree as "the killing of a human being committed: (1) Intentionally,
and with premeditation." The jury was properly instructed that to prove premeditation the
State had to show Seba had "thought the matter over beforehand, in other words, [had]
11
formed the design or intent to kill before the act." See PIK Crim. 4th 54.150(d) (2013
Supp.). The State relied on the transferred intent doctrine to prove Seba acted
intentionally and with premeditation.
This court has previously explained the transferred intent doctrine by stating:
"The fact that the homicidal act was directed against one other than the person
killed does not relieve the slayer of criminal responsibility. It is generally held that such a
homicide partakes of the quality of the original act, so that the guilt of the perpetrator of
the crime is exactly what it would have been had the assault followed upon the intended
victim instead of another." State v. Moffitt, 199 Kan. 514, 535, 431 P.2d 879 (1967),
overruled on other grounds by State v. Underwood, 228 Kan. 294, 306, 615 P.2d 153(1980).
More plainly stated, "'"the malice or intent follows the bullet." 40 Am. Jur. 2d, Homicide
§ 11, pp. 302-03.'" State v. Jones, 257 Kan. 856, 860, 896 P.2d 1077 (1995); see State v.
Garza, 259 Kan. 826, 829, 916 P.2d 9 (1996) (same).
Seba presents several arguments regarding the application of transferred intent in
this case. In one argument aimed at establishing the instruction was not legally
appropriate, Seba briefly and unpersuasively argues felony murder is the only charge
available because the legislature has statutorily codified felony murder but not the
transferred intent doctrine. He suggests felony murder applies because Seba's attempt to
kill Brandon Wright constituted an inherently dangerous felony and the two charged first-
degree murder counts resulted from his actions during the commission of that felony. See
K.S.A. 2015 Supp. 21-5402 (defining murder in the first degree to include premeditated
murder and "the killing of a human being committed . . . in the commission of . . . any
inherently dangerous felony").
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Seba is correct that the concept of transferred intent developed at common law
and, while it "is an accepted principle in the courts of this state," it has not been codified.
Jones, 257 Kan. at 859; see Moffitt, 199 Kan. at 535; see also Prosser, Transferred Intent,
45 Tex. L. Rev. 650, 652-53 (1967) (discussing common-law origins of transferred intent
doctrine in England and carryover to the United States). Seba then supports his argument
that felony murder must serve as the State's theory of prosecution by citing Moffitt, 199
Kan. at 529-30, for its statement that "where any [definitions of murder and manslaughter
at common law] are not in accord with our statutory provisions the latter must control."
But Seba fails to point out how the transferred intent doctrine is not in accord with
Kansas' first-degree murder statute.
Although not considering this exact argument, we have recognized that sometimes
the same evidence can support either a felony-murder conviction or a premeditated
murder conviction based on transferred intent. Jones, 257 Kan. at 870 ("[P]recisely the
same evidence supports the charge of first-degree felony murder" and the premeditated
murder charge "[u]nder the transferred intent theory . . . . Not being able to determine
from the general verdict form on which theory the jury based its verdict, therefore, is
immaterial."). This conclusion stands at odds with Seba's contention, although the Jones
decision did not specifically address the issue raised by Seba. But other courts have. One
example is Gladden v. State, 273 Md. 383, 330 A.2d 176 (1974).
In Gladden, a Maryland appellate court considered whether the transferred intent
doctrine should be applied to a charge brought under Maryland's premeditated murder
statute. The Maryland court first extensively discussed the common-law history of the
transferred intent doctrine and its application in the United States. It recognized the
doctrine in the same words used by this court in Jones, words taken from 40 Am. Jur. 2d,
13
Homicide § 11, pp. 302-03. Gladden, 273 Md. at 392-93. The court rejected the
possibility that the codification of the elements of murder required abandonment of the
transferred intent doctrine, concluding "its viability is recognized by its current
acceptance and application." 273 Md. at 392.
To make its point, the Maryland court noted the large number of states that apply
the transferred intent doctrine as a means to prove statutory premeditated murder. But it
also noted that a handful of states do not (or at some point in their history did not)
recognize the doctrine. 273 Md. at 393-400. For example, although Montana has since
amended its murder statute, in 1918 the Montana Supreme Court "held that the killing of
one person undesignedly in the attempt to murder another, although not a guiltless
homicide, was not murder in the first degree since under the Montana statute it was
necessary to show 'the deliberate premeditated design specifically to kill the person who
was killed.'" 273 Md. at 398 (quoting State v. Caterni, 54 Mont. 456, 171 P. 284, 285
[1918]). In contrast, many states with statutory provisions similar to Kansas'—i.e.,
defining the crime as "the killing of a human being" and without limitation to a specific
victim—applied the transferred intent doctrine to premeditated murder. 273 Md. at 394.
To read a statute like Kansas' to have the same meaning as the 1918 Montana statute, a
reading favored by the Maryland defendant and Seba, "would necessitate the engrafting
of an ingredient that such homicide must be committed 'with malice aforethought against
the deceased'—an element never required under the common law." 273 Md. at 403.
As the Gladden court's reasoning suggests, the transferred intent doctrine does not
create a different crime than the statutorily defined crime of first-degree premeditated
murder. Nor does it alter a statutory provision. As did the Maryland court, we fail to see
anything in Kansas' first-degree premeditated murder provision that conflicts with the
transferred intent doctrine. See K.S.A. 2015 Supp. 21-5402(a)(1).
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Nor do we find a conflict between the transferred intent doctrine and the felony-
murder statutory provisions. Rather, consistent with our holding in Jones, premeditated
murder proven through the transferred intent doctrine can coexist with felony murder as
an alternative theory for proving first-degree murder—just as the first-degree murder
statute envisions. Jones, 257 Kan. at 870; see State v. Thomas, 302 Kan. 440, Syl. ¶ 1,
353 P.3d 1134 (2015) ("Premeditated and felony murder are not separate and distinct
offenses, but rather they are two theories under which the crime of first-degree murder
may be committed."). Again, the Maryland court explained some concepts that lead to
this conclusion.
The transferred intent doctrine and the felony-murder rule "had a common origin
under the common law," and "[i]n homicide cases . . . the doctrine of 'transferred intent'
performs a function equivalent to that applied under the felony-murder rule"—that is,
both provide a method of proving the state of mind element of first-degree murder.
Gladden, 273 Md. at 403-04; see also State v. Gayden, 259 Kan. 69, 76-78, 910 P.2d 826(1996). As this court explained in Gayden, while both theories transfer intent, they differ
with respect to the nature of the intent that transfers.
A typical first-degree murder charge based on the theory of transferred intent
occurs when A tries to kill B but actually kills C. A's intent—the homicidal intent—to
kill B transfers to C, making A guilty of first-degree murder even though A did not intend
the specific victim. Felony murder, in contrast, transfers the intent to commit an
inherently dangerous felony to an unintended death that occurs during the commission of
the underlying felony. It is felonious intent, rather than homicidal intent, that provides the
malice and intent required for a first-degree felony-murder conviction. See 259 Kan. at
76-78. In some cases, the felonious intent to commit an inherently dangerous felony may
15
be a homicidal intent—i.e., the two theories may overlap. But often there will not be an
overlap—the felonious intent to commit an inherently dangerous felony will not be an
intent to commit a homicide.
Overlap does not equate to conflict. In Gayden, we specifically rejected an
argument that the transferred intent doctrine conflicted with first-degree felony murder
under the facts of that case, stating:
"What defendant postulates is a conflict between the legal doctrines of
transferred intent and felony murder in the circumstances of his case. A review of
application of the felony-murder principle by this court and relevant statutory provisions
leads to the conclusion that there is no such conflict and thus no merit to defendant's
argument." 259 Kan. at 75.
Further, contrary to Seba's argument, this court's holding in Gayden does not mean
that only a felony-murder conviction can stand when the one murdered is not the intended
victim. Seba tries to pull too much from Gayden, as this court did not decide whether
felony murder was the only charge available when a defendant intends to cause the death
of one person but misfires and causes the death of an unintended victim.
In Gayden, Lafayette Gayden shot at a man in a bar and in the process killed a
bystander. The State charged Gayden with attempted first-degree murder as to his
intended target. The jury, however, received an instruction on the lesser included offense
of attempted voluntary manslaughter and convicted Gayden of this lesser offense. The
State charged Gayden with felony murder for the bystander's death. The jury received
instructions on both felony murder and transferred intent, and the jury convicted Gayden
of felony murder.
16
On appeal, Gayden claimed this court should reverse his felony-murder
conviction. He premised his argument on the following logic: The jury convicted him
of attempted voluntary manslaughter of the intended target rather than attempted
first-degree murder. See K.S.A. 2015 Supp. 21-5404(a) (voluntary manslaughter is
"knowingly killing a human being . . . [u]pon a sudden quarrel or in the heat of passion").
So, because the jury believed Gayden's intent to kill was not sufficient for first-degree
murder, that same intent—which arguably transferred to the bystander—should not have
been enough to justify the first-degree felony-murder conviction. This court disagreed
and explained the difference between the intent that transfers for first-degree intentional
murder and the intent that transfers for first-degree felony murder. Notwithstanding the
lack of a premeditated intent to kill, Gayden's intent to commit the attempted voluntary
manslaughter—an inherently dangerous felony—was legally sufficient to support his
first-degree felony-murder conviction. 259 Kan. at 76-79.
This case does not present the same problem as that faced in Gayden. Rather than
some lesser offense, the jury convicted Seba of the attempted first-degree murder of
Brandon Wright. Likewise, there is not an issue here with something less than homicidal
intent being transferred, and Gayden provides little support for Seba's argument.
As the Maryland court explained in Gladden, if the defendant acts with a
premeditated intent to kill, "[t]he purpose and malice with which the shots were fired are
not changed in any degree by circumstances showing that they did not take effect—
because of bad aim—upon [the intended victim]." Gladden, 273 Md. at 404-05. In such a
circumstance, the defendant's "culpability under the law and the resultant harm to society
[are] the same as if he had accomplished the result he intended when he caused the death
of the [unintended victim]." 273 Md. at 405. In other words, the defendant's culpability is
the same, even if a shot misses the intended target.
17
Thus, if Seba's state of mind involved an intent to kill and premeditation, it is not
inconsistent with Kansas statutes for him to be convicted of first-degree premeditated
murder under the transferred intent doctrine. The transferred intent doctrine does not
offend K.S.A. 2015 Supp. 21-5402, Kansas' first-degree murder statute. Rather, the
doctrine merely clarifies that evidence of a defendant's intent to kill a particular person
can prove intent to kill a human being even if a person other than the intended victim is
murdered at the defendant's hands.
In addition to these overarching objections to the use of transferred intent to both
first-degree premeditated murder convictions, Seba presents several reasons the
transferred intent doctrine cannot support his Alexa's law conviction. Before discussing
the specifics of those arguments, we return to the statutory provisions of what is known
as Alexa's law, found in K.S.A. 2015 Supp. 21-5419. The statute provides that for some
crimes, including murder as defined in K.S.A. 2015 Supp. 21-5402, "'human being' also
mean[s] an unborn child." K.S.A. 2015 Supp. 21-5419(c). An "'unborn child' means a
living individual organism of the species homo sapiens, in utero, at any stage of gestation
from fertilization to birth." K.S.A. 2015 Supp. 21-5419(a)(2). Through Alexa's law, the
legislature expressed an intent to allow two units of criminal prosecution if one act—such
as shooting one bullet—kills both a woman and her "unborn child." See State v.
Schoonover, 281 Kan. 453, 472, 133 P.3d 48 (2006) ("The unit of prosecution was
determined by the scope of the course of conduct defined by the statute rather than the
discrete physical acts making up that course of conduct or the number of victims injured
by the conduct."). The parties do not discuss the implications of this legislative intent and
the effect it might have on the proof of the criminal intent needed to support an Alexa's
law conviction. We, therefore, will also leave that discussion to another day.
18
Instead, Seba, in arguing his Alexa's law conviction cannot rest on the same
transferred intent theory as does the premeditated murder of Duran, contends the State
"claimed that Mr. Seba deliberately shot a human being, who was Duran—she was the
intended victim and she was killed." He further argues that once she was killed the act
was completed and the intent could not be transferred. In other words, according to Seba,
his intent to kill Duran was realized by her death and there was no intent left to transfer.
Thus there can be no Alexa's law conviction.
Seba's argument contains both legal and factual components. The legal
component—whether the transferred intent doctrine can be used to establish premeditated
murder when the intended target is killed in addition to an unintended target—finds some
support in caselaw from other jurisdictions, but courts do not agree on the point. Compare
United States v. Sampol, 636 F.2d 621, 674 (D.C. Cir. 1980) ("There are even stronger
grounds for applying the [transferred intent] principle where the intended victim is killed
by the same act that kills the unintended victim."), with People v. Birreuta, 162 Cal. App.
3d 454, 460, 208 Cal. Rptr. 635 (1984) ("When the intended victim is killed . . . there is
no need for such an artificial doctrine [as transferred intent]. The defendant's
premeditation, deliberation, intent to kill and malice aforethought are all directly
employable in the prosecution for murdering his intended victim. The accidental killing
may thus be prosecuted as a manslaughter or second degree murder.").
We need not determine which line of cases we would apply, however, because the
facts and procedural history of this case do not support Seba's argument. The jury heard
evidence that Seba told the Wright brothers, "I'm going to kill you motherfuckers," as he
went into his house to retrieve his firearm. He also stated during his second interview that
he believed Duran was trying to help him and she just happened to be standing by
Brandon Wright. While he was "pretty mad" because the Wrights had "taunt[ed]" him, he
19
was not upset with Duran. Moreover, he did not "think anything they did to me should
have caused that, should have caused that girl to die." Also, the fact Seba fired eight shots
after Duran fell to the ground—five of which hit one of the men with whom he had
fought—provides further evidence she was not the intended target or at least not the only
intended target. And he told his father he thought he had shot two black men. Overall,
these facts indicate the Wright brothers, not Duran, were the intended victims, and Seba
does not cite any facts to support a contrary view.
Instead Seba relies on a single statement taken out of context from the State's
closing argument. Before this statement, the State emphasized facts to the jury that
pointed to the Wright brothers as the intended victims. For example, the prosecutor stated
while explaining the concept of transferred intent:
"[T]he intent follows the bullet. That bullet, whatever the intent was, follows the bullet,
whatever it hits. So did the defendant desire to kill the intended victim before pulling the
trigger? He called up his dad immediately after and said I shot two black guys—said I
think I shot two black guys."
The prosecutor continued with similar statements and, overall, conveyed to the jury the
State's theory that the two black guys—the Wright brothers—were the intended victims.
Without mentioning this context, Seba cites a statement that appears in the trial
transcript six pages after the prosecutor's discussion of transferred intent. At that point the
prosecutor explained that the "unborn child died because . . . of the bullet that was put in
[Duran's] head by the defendant, she could not pump the blood and provide the oxygen to
that unborn child that was needed for life." The prosecutor continued with the question,
"So does this unborn child count?" He then explained that under Kansas' Alexa's law the
20
death did count and that the jury should recall a witness' explanation of how the terms
used in the statutory definition of "unborn child" applied in Seba's case.
Then the prosecutor made the statement on which Seba focuses: "[I]f Alexandria
Duran was killed, murdered in the first degree, premeditation, then so was her unborn
child." In context, this statement did not shift the State's theory of transferred intent so as
to suggest that Duran was an intended target. Rather, the State's point was that Alexa's
law allowed the State to prosecute the Alexa's law murder and that the same facts
supporting a conviction for Duran's death—facts the prosecutor had discussed at length
and included the explanation of transferred intent quoted above—supported a conviction
on the Alexa's law charge as well.
Indeed, factually, nothing distinguishes the state of mind element (or any other
element) of the two first-degree premeditated murder counts. Nothing suggests Seba
intended to cause either death, and both counts depend on Seba's intent to kill the Wright
brothers transferring to the bystander and her unborn child. In other words, the prosecutor
made a factually accurate statement when he equated the intent relating to both counts.
Even if there is ambiguity in the State's argument, the district court instructed the
jury regarding transferred intent in a way that conveyed to the jury that someone other
than Duran was the intended victim. The court repeated the pattern instruction on
transferred intent in its instruction regarding the first-degree premeditated murder count
relating to Duran and in each lesser included offense instruction relating to that count.
The pattern instruction reads: "When a homicidal act is directed against one other than
the person killed, the responsibility of the actor is the same as it would have been had the
act been completed against the intended victim." PIK Crim. 4th 54.160 (2014 Supp.). The
words "one other than the person killed" informed the jury of the State's theory that the
21
homicidal act had been directed at someone other than Duran. Similarly, in the elements
instruction regarding the premeditated murder count under Alexa's law, the district court
informed the jury of the transferred intent theory.
Thus, Seba's argument that Duran was the intended victim lacks factual support—
in the evidence presented, in the arguments of the prosecutor, or in the instructions
considered by the jury.
This does not dispose of Seba's arguments, however, because he also suggests that
once Duran died his homicidal intent had been exhausted and could not transfer and
support another premeditated murder charge. At oral argument, Seba's counsel asserted
that intent thus is severed from the bullet once a death occurs and intent no longer follows
the bullet. Providing an example, Seba's counsel argued that if one person stands directly
behind another and one bullet passes through the first person and hits the second, killing
both, the intent to kill can only transfer to the first victim; the second count must be for
felony murder.
Seba cites to the wording of Kansas' pattern instruction on transferred intent for
support. See PIK Crim. 4th 54.160 (2014 Supp.) ("When a homicidal act is directed
against one other than the person killed, the responsibility of the actor is the same as it
would have been had the act been completed against the intended victim."). Specifically,
he focuses on the words in the instruction about a completed act. We reject his reading of
the instruction for several reasons.
First, the PIK instruction does not read as Seba suggests. He essentially would
leave off the final words of the instruction—"against the intended victim"—so that the
transfer of intent would end as soon as a defendant's actions ended in a death, even if all
22
the individuals killed were bystanders and not the intended victim. When the phrase
"against the intended victim" is added into the equation, the pattern instruction does not
suggest the homicidal act is complete or its intent exhausted when those other than the
intended target are killed; Seba's argument lacks grammatical support.
Second, even if we assume Seba's argument has merit, the transfer of intent
directed at two or more intended victims could theoretically be transferred to two
unintended victims. Under that theory the record in this case provides sufficient evidence
to support Seba's first-degree premeditated murder convictions. In particular, statements
by Seba during the altercation and to law enforcement officers after the fact reveal
evidence sufficient to support two first-degree premeditated convictions based on the
transfer of intent. The evidence, when considered in the light most favorable to the State,
could lead a reasonable jury to conclude Seba intended to kill two individuals: His threat
to kill "you motherfuckers" was aimed at both Wright brothers; he shot one person and
when that person fell he shot eight more times, hitting the second person with five shots;
and he reported he had shot two black men—his two intended targets.
Hence, we reject Seba's arguments that the Alexa's law count could only rest on a
theory of first-degree felony murder. The district court properly instructed the jury on
transferred intent for a charge of premeditated first-degree murder for both the count
relating to Duran and the Alexa's law count. We also rule that sufficient evidence
supports the jury's determination that Seba was guilty of both counts of first-degree
premeditated murder.
23
ISSUE 2: The district court's failure to instruct on reckless second-degree murder and
reckless involuntary manslaughter was harmless.
We next address whether the district court erred by failing to instruct the jury on
reckless second-degree murder and reckless involuntary manslaughter. Seba did not
request either instruction, so the clear error standard applies. K.S.A. 2015 Supp.
22-3414(3).
The State charged Seba with an intentional and premeditated murder, but if the
district court had given the jury an instruction on the two lesser included offenses now
suggested by Seba, the jury could have considered whether he acted recklessly instead of
intentionally.
The distinction between the crimes charged and the requested instructions is, at the
core, the intent to kill. See K.S.A. 2015 Supp. 21-5403(a)(2) (reckless second-degree
murder is a killing done "unintentionally but recklessly under circumstances manifesting
extreme indifference to the value of human life"); K.S.A. 2015 Supp. 21-5405(a)(1)
(defining reckless involuntary manslaughter as "the killing of a human being committed .
. . [r]ecklessly"); State v. Deal, 293 Kan. 872, 882, 269 P.3d 1282 (2012). A person acts
recklessly by "consciously disregard[ing] a substantial and unjustifiable risk that
circumstances exist or that a result will follow, and such disregard constitutes a gross
deviation from the standard of care which a reasonable person would exercise in the
situation." K.S.A. 2015 Supp. 21-5202(j).
Clearly, a lesser included offense instruction on reckless second-degree murder
would have been legally appropriate because "[r]eckless second-degree murder is a lesser
included offense of premeditated first-degree murder." State v. Martinez, 288 Kan. 443,
453, 204 P.3d 601 (2009). A lesser included offense instruction on reckless involuntary
24
manslaughter would also have been legally appropriate, as it is a lesser included offense
of first-degree murder and second-degree murder. See State v. Engelhardt, 280 Kan. 113,
135, 119 P.3d 1148 (2005) (reckless involuntary manslaughter differs from reckless
second-degree murder "only in the degree of recklessness required to prove culpability").
The closer question is whether a reckless second-degree murder instruction was
factually appropriate. "[L]esser included offense instructions must be given when there is
some evidence, [viewed in a light most favorable to the defendant,] emanating from
whatever source and proffered by whichever party, that would reasonably justify a
conviction of some lesser included crime." State v. Rodriguez, 295 Kan. 1146, 1152, 289
P.3d 85 (2012); see K.S.A. 2015 Supp. 22-3414(3); see also State v. Kershaw, 302 Kan.
772, 775, 359 P.3d 52 (2015).
This court has stated that "[t]he unsupported testimony of the defendant alone, if
tending to establish such lesser degree, is sufficient to require the court to so instruct."
State v. Clark, 261 Kan. 460, 464, 931 P.2d 664 (1997). But we have also held that when
evidence is overwhelming, a defendant's "self-serving statement regarding his lack of
intent did not in itself invoke a duty on the trial judge to instruct on recklessness." State v.
Calderon, 270 Kan. 241, 256, 13 P.3d 871 (2000). In other words, whether an otherwise
unsupported and self-serving statement of intent compels a lesser included offense
instruction depends on the extent to which the other evidence repudiates the statement.
Here, Seba presents two factual circumstances he contends would have supported
a jury concluding he acted recklessly. First, he points to evidence of his intoxication.
Second, he relies on evidence that he shot above the crowd.
25
As to Seba's intoxication argument, we note that the district court instructed the
jury that voluntary intoxication could negate the intent required for first-degree murder.
We presume the jury properly considered and rejected the idea that Seba's intoxication
negated his intent to kill, and we do not reweigh evidence. See State v. Kettler, 299 Kan.
448, 466, 325 P.3d 1075 (2014) ("Appellate courts do not reweigh evidence."); State v.
Rogers, 276 Kan. 497, 503, 78 P.3d 793 (2003) ("As a general rule, juries are presumed
to have followed instructions given by the trial court."). Seba does not present a firmly
convincing argument as to why an instruction on reckless second-degree murder would
have, on its own, caused the jury to change its assessment and believe Seba's intoxication
was somehow sufficient to negate his intent to kill.
Regarding his second argument, Seba points to a recording heard by the jury.
In that recording of Seba's second interview with law enforcement, he indicated he was
aiming above the group of people when he fired in an attempt to scare them. The State
counters by arguing that a reckless second-degree murder instruction was not factually
appropriate. It cites two cases for support—State v. Perez, 294 Kan. 38, 261 P.3d 532(2012), and State v. Clark, 261 Kan. 460, 931 P.2d 664 (1997). It also points to the
physical evidence that counters Seba's assertion and argues the overwhelming evidence
of intent and premeditation means the district court did not have a duty to instruct on
reckless second-degree murder.
We need not resolve the dispute because even if we assume the district court erred
in failing to provide an instruction on reckless second-degree murder or on reckless
involuntary manslaughter, the error was harmless because Seba fails to firmly convince
us the jury would have reached a different result without the error. State v. Williams, 295
Kan. 506, 516, 286 P.3d 195 (2012). Evidence of premeditation and an intent to kill was
overwhelming. When Seba broke free from the Wright brothers he yelled something like,
26
"You are going to get shot, nigger." And he followed through with that threat. Seba ran
into his house, up his stairs, and into a room where he retrieved a modified-for-accuracy
.22 rifle from its case, charged it as he ran back down the stairs, exited the house onto his
porch, and fired nine shots—at a downward trajectory—hitting Duran once in the head
and Wright five times.
Seba did say he "imagined" he was "just trying to scare them" by trying to aim
above them. But the sky is vast and hard to miss, and just under 67 percent of Seba's
shots hit a person. Seba had been described as a good shot, and his repeated shots into the
back of Wright's body suggests he was aiming at a specific point much lower than above
the heads of the group. Considering the overwhelming evidence, we are not firmly
convinced the jury would have found that Seba lacked the intent to kill had the jury
received a reckless second-degree murder instruction.
ISSUE 3: The definitional instruction for "intentionally" did not misstate the law.
To be guilty of first-degree premeditated murder, a person must have intended to
cause a particular result—death. K.S.A. 2015 Supp. 21-5402(a)(1); see Deal, 293 Kan. at
883-85. In another claim of instructional error, Seba argues the district court failed to
instruct the jury on that requirement. Instead, Seba claims the instructions advised the
jury that Seba was guilty of first-degree murder if he merely intended to perform an act
that resulted in death. In other words, Seba claims the instructions might have confused
the jury into believing that Seba was guilty of first-degree murder merely if he intended
to fire the gun. We see no reason why the instruction here would have confused the jury.
PIK Crim. 4th 52.010 (2015 Supp.) provided the district court with a
recommended model instruction defining "intentionally." See State v. Franklin, 264 Kan.
27496, 505, 958 P.2d 611 (1998) (use of PIK instructions is recommended). This instruction
contemplated two potential versions:
"A defendant acts intentionally when it is the defendant's desire or conscious
objective to insert one or more of the following as appropriate for the crime charged:
 do the act complained about by the State.
or
 cause the result complained about by the State." PIK Crim. 4th 52.010 (2015
Supp.).
See State v. Hobbs, 301 Kan. 203, 340 P.3d 1179 (2015).
Here, the district court's instruction on Count 1—the first-degree murder of
Duran—read as follows:
"In Count 1, the Defendant is charged with murder in the first degree concerning
Alexandria Duran. The Defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
1. The Defendant intentionally killed Alexandria Duran.
2. The killing was done with premeditation.
3. This act occurred on or about the 24th day of July, 2013, in Pratt County,
Kansas.
....
"A defendant acts intentionally when it is the Defendant's desire or conscious
objective to do the act complained about by the State." (Emphasis added.)
28
Additionally, the elements instructions with respect to the other victims used the same
definition of intentionally (as did all lesser included offense instructions where the mental
state required the defendant to act intentionally).
Seba contends that because the district court chose the version of PIK Crim. 4th
52.010 (2015 Supp.) with the language "do the act" instead of "cause the result," the jury
believed it could find Seba guilty merely by believing he intended to fire the gun. But the
"do the act" language accurately corresponded to the other language in the instruction.
Unquestionably, a first-degree premeditated murder conviction requires death to
have been the intended result of an act. Deal, 293 Kan. at 883-85. And as the State points
out, the language of the instructions only permitted the jury to convict Seba if it believed
he intended to do a specific act, i.e., kill. "Killing," as an act, necessarily requires a
result—death. So Seba could not intend to kill without intending to cause death, meaning
the instruction would not have confused the jury into believing that Seba was guilty
merely if he intended to fire the gun. Perhaps the district court could have reworded the
elements language to grammatically fit the "cause the result" PIK language. But the
district court did not confuse the jury about the legal elements of first-degree
premeditated murder with the PIK language it used to define "intentionally." Taken as a
whole, the instruction properly informed the jury of the intent requirement, and we reject
Seba's claim that the instruction was erroneous.
ISSUE 4: The failure to instruct on imperfect self-defense voluntary manslaughter was not
reversible error.
Seba argues the district court erred by failing to provide an instruction on
imperfect self-defense voluntary manslaughter. Again, we initially consider whether the
instruction was legally and factually appropriate, which are questions subject to unlimited
29
review. State v. Clay, 300 Kan. 401, 408, 329 P.3d 484 (2014). As this claim involves a
lesser included offense, we must view the evidence in the light most favorable to Seba to
determine if a reasonable jury could have convicted him of the lesser offense. K.S.A.
2015 Supp. 22-3414(3); State v. Rodriguez, 295 Kan. 1146, 1152, 289 P.3d 85 (2012).
Imperfect self-defense voluntary manslaughter "is knowingly killing a human
being . . . upon an unreasonable but honest belief that circumstances existed that justified
use of deadly force [in defense of a person, in defense of a dwelling, or in defense of
other property]." K.S.A. 2015 Supp. 21-5404(a)(2) (referencing K.S.A. 2015 Supp.
21-5222; K.S.A. 2015 Supp. 21-5223; K.S.A. 2015 Supp. 21-5225). This crime is a lesser
included offense of first-degree intentional murder, and Seba's proposed instruction
would have been legally appropriate. See State v. Gallegos, 286 Kan. 869, 874, 190 P.3d
226 (2008).
In arguing the instruction was factually appropriate, Seba focuses on his
interviews by law enforcement officers in which he said he had been afraid. He
specifically referenced his first interview, in which he said that he shot the victims after
they pulled him out of his door, off his porch, and while they were attacking him. He
argues these statements reveal a subjective belief he needed to defend himself. As these
arguments related to Seba's claim of self-defense, the district court instructed the jury on
perfect self-defense, but the jury rejected it.
As to imperfect self-defense, which focuses on the subjective beliefs of the
defendant, even if we assume without analysis that the lesser included offense on
imperfect self-defense voluntary manslaughter should have been given, Seba fails to
firmly convince us the jury would have reached a different result without the error.
Williams, 295 Kan. at 516.
30
All Seba can point to are an isolated statement that he was fearful and his retracted
"bullshit" statements in his first interview. Yet, subjectively feeling fear is not sufficient
to justify self-defense. As we clarified in State v. Roeder, 300 Kan. 901, Syl. ¶ 5, 336
P.3d 831 (2014), cert. denied 135 S. Ct. 2316 (2015), reh'g denied 136 S. Ct. 10 (2015):
"An unreasonable but honest belief that circumstances existed that justified deadly force
will not support a claim of imperfect [self-defense] unless the circumstances, if
reasonably believed, would have supported a claim of perfect" self-defense under K.S.A.
2015 Supp. 21-5222.
Under K.S.A. 2015 Supp. 21-5222(b), deadly force can be justified only to the
extent a person reasonably believes the "use of deadly force is necessary to prevent
imminent death or great bodily harm to such person or a third person." Further, "the
justification of self-defense 'is not available to a person who . . . initially provokes the use
of force against himself' unless he or she has exhausted every means to escape from
imminent danger or has communicated the good-faith intent to terminate the use of
force." State v. Knox, 301 Kan. 671, 678, 347 P.3d 656 (2015); see State v. Salary, 301
Kan. 586, 594-95, 343 P.3d 1165 (2015); see also K.S.A. 2015 Supp. 21-5226(c).
As applied here, Seba admitted, even in the first interview, that he had been trying
to provoke the men. And in Seba's second interview, he told investigators that everything
his said in the first interview was "bullshit." He did not indicate he believed anyone else
had a gun. No one pulled him out of his house. He shot at a group of people standing
20 feet away near the border of his property—facing away from him. He was not being
attacked when he fired the shots. As to his subjective beliefs, he said he did not know
why he shot at them; he thought maybe it was because the Wrights had threatened him
before or maybe because he was mad and trying to get back at them for taunting him.
31
Further, the evidence at trial showed Seba broke free and escaped into his house
after the physical confrontation between him and the Wright brothers in the yard. He was
not followed, and he chose to return to the scene of the confrontation with a gun. The
men who had accompanied Brandon Wright were already fleeing the scene before Seba's
first shot. Seba himself said he "would not have c[o]me back out" if he would have
known Duran would be shot. That concession, that there was no need for him to return to
his porch, undercut any inference that he subjectively believed he had to use deadly force
to protect himself or his property.
The evidence, including Seba's admissions, shows that Seba understood he could
have entirely avoided the second confrontation. See Salary, 301 Kan. at 597 ("[L]eaving
a confrontation with an individual and then returning with a loaded firearm and shooting
that same person . . . typically [renders a person] ineligible for a self-defense instruction"
under Kansas caselaw.); State v. Harris, 293 Kan. 798, 805, 269 P.3d 820 (2012) ("To
warrant a voluntary manslaughter instruction . . . there needed to be evidence showing . . .
an honest belief deadly force was necessary.").
In other words, even assuming Seba should have been given a lesser included
offense instruction on imperfect self-defense voluntary manslaughter the evidence
provided little support for a finding that Seba subjectively believed he needed to shoot his
victims. In light of the overwhelming evidence of intent and premeditation, including
Seba's own admission that he could have avoided everything by staying inside his house,
Seba fails to present a firmly convincing argument that the jury's verdict would have been
different had it received such an instruction. Thus, even assuming the district court erred
by not giving the instruction, Seba fails to convince us the jury would have reached a
different result without the error. See Williams, 295 Kan. at 516.
32
ISSUE 5: The district court correctly instructed the jury that voluntary intoxication was
not a defense to voluntary manslaughter.
The district court instructed the jury that voluntary intoxication was a defense to
the charges of first-degree premeditated murder, second-degree intentional murder,
attempted premeditated murder, and attempted intentional murder if "such intoxication
impaired the Defendant's mental faculties to the extent that he was incapable of forming
the necessary intent to kill or the necessary premeditation." The jury rejected the defense.
Now, for the first time on appeal, Seba complains about the last portion of the voluntary
intoxication instruction in which the district court told the jury voluntary intoxication was
not a defense to the lesser included offenses of voluntary manslaughter and attempted
voluntary manslaughter.
Seba argues that the voluntary intoxication instruction misstated the law, which
presents an issue subject to unlimited review. See State v. Barber, 302 Kan. 367, 377,
353 P.3d 1108 (2015) (an instruction that does not accurately state the law is error).
Focusing first on the thrust of Seba's argument, we find the instruction did not misstate
the law as to voluntary manslaughter.
"'[V]oluntary intoxication is not a defense to general intent crimes, [although it]
may be used to negate the intent element of a specific intent crime.'" State v. Hilt, 299
Kan. 176, 192, 322 P.3d 367 (2014) (quoting State v. Brown, 291 Kan. 646, 654, 244
P.3d 267 [2011]). Typically, a general intent crime does not require the State to prove the
defendant intended the specific harm or result. In re C.P.W., 289 Kan. 448, 454, 213 P.3d
413 (2009). The legislature has designated crimes with a mental culpability requirement
of "'knowingly,' known,' or 'with knowledge' [as] general intent crimes." K.S.A. 2015
Supp. 21-5202(i). This court recently held that "the legislature's designation of a general
33
intent mental culpability requirement where a crime is defined by the term 'knowingly'
continues to express a legislative intent that a voluntary intoxication defense is
unavailable for that crime." State v. Kershaw, 302 Kan. 772, 782, 359 P.3d 52 (2015).
Voluntary manslaughter is "knowingly killing a human being . . . in the heat of
passion." (Emphasis added.) K.S.A. 2015 Supp. 21-5404(a)(1). Because the legislature
determined voluntary manslaughter required a knowing mental state—meaning voluntary
manslaughter is a general intent crime—voluntary intoxication was not legally available
as a defense. Kershaw, 302 Kan. at 782. Thus, the district court committed no error in
instructing the jury that "[v]oluntary intoxication is not a defense to the charge[] of
voluntary manslaughter."
Seba's argument to the contrary misplaces reliance on State v. Hobbs, 301 Kan.
203, 340 P.3d 1179 (2015). In Hobbs, this court reviewed a Court of Appeals decision
that raised the question of whether a conviction for aggravated battery required the State
to prove that a defendant knew both the nature of the act taken and the nature of its result,
i.e., knew that great bodily harm would result from an act. 301 Kan. at 209-11. The Court
of Appeals had concluded that aggravated battery was a general intent crime, so evidence
that a defendant knew great bodily harm would be the result was irrelevant. 301 Kan. at
206; see also In re C.P.W., 289 Kan. at 454 (the State does not need to prove knowledge
of result for general intent crimes).
While the Court of Appeals' holding might have been the past approach to general
intent crimes, based on new statutory language this court disagreed with that holding.
Although the legislature designated "knowing" crimes as ones of general intent, the
legislature also clarified that if a crime's definition "'prescribes a culpable mental state
that is sufficient for the commission of a crime, without distinguishing among the
34
material elements thereof, such provision shall apply to all the material elements of the
crime.'" Hobbs, 301 Kan. at 209-10 (quoting K.S.A. 2011 Supp. 21-5202). And because
the aggravated battery statute prescribed a "knowing" mental state but did not distinguish
among the material elements of the crime, the State had to prove "knowing" as to both
elements—knowledge of the act and knowledge of the result. Thus, this court concluded
in Hobbs that "the legislature does not intend for 'general intent' to necessarily mean what
it once did." 301 Kan. at 210-11; see Kershaw, 302 Kan. at 781. Notwithstanding, this
court did not overrule precedent concerning the voluntary intoxication defense or expand
the intoxication defense beyond specific intent offenses. See Kershaw, 302 Kan. at 781-
82 (recognizing Hobbs, but holding "[v]oluntary intoxication is not a defense to the
prosecution of a general intent crime").
Because the legislature determined voluntary manslaughter required a knowing
mental state—meaning voluntary manslaughter is a general intent crime—voluntary
intoxication is not legally available as a defense. Thus, the district court committed no
error in instructing the jury of that legal point.
In addition, Seba makes a passing reference in his argument to attempted
voluntary manslaughter. The State gives Seba the benefit of this brief reference and
concedes the district court erred in not including attempted voluntary manslaughter in the
listing of lesser included crimes to which the defense might apply.
Accepting without analyzing the State's concession, Seba nevertheless fails to
present a firmly convincing argument that the jury would have returned a different
verdict had the district court instructed the jury that voluntary intoxication was a defense
to attempted voluntary manslaughter. Hence, the error was harmless. See State v. Clay,
300 Kan. 401, 408, 329 P.3d 484 (2014). Again, evidence of intent and premeditation
35
was overwhelming in this case. And based on that evidence, the jury convicted Seba of
two counts of first-degree murder and one count of attempted first-degree murder.
Because the jury disregarded Seba's intoxication and relied on overwhelming evidence to
convict him of crimes requiring intent and premeditation (rejecting the lesser offenses of
intentional second-degree murder), it would not have mattered to the jury whether
voluntary intoxication was potentially a defense to the still lesser crime of attempted
voluntary manslaughter. See State v. Williams, 303 Kan. 585, 599-600, 363 P.3d 1101(2016) ("'When a lesser included offense has been the subject of an instruction, and the
jury convicts of the greater offense, error resulting from failure to give an instruction on
another still lesser included offense'" can be deemed harmless.).
ISSUE 6: The district court did not abuse its discretion by admitting autopsy
photographs.
At trial, Seba objected to a photograph showing Duran's brain and the trajectory of
the bullet through it and to photographs Seba refers to as "fetus photographs" shown after
the coroner testified, as summarized in Seba's brief, "that the death of the fetus 'was due
to the death of the mother.'" Seba argues the photographs lacked relevancy, were
prejudicial, and were cumulative of other evidence.
When considering an issue challenging a district court's decision to admit
photographs into evidence, an appellate court must first determine whether the photos are
relevant. State v. Riojas, 288 Kan. 379, 387, 204 P.3d 578 (2009). Evidence is relevant,
and thus meets a threshold test for admissibility, if it has "any tendency in reason to prove
any material fact." K.S.A. 60-401(b). Nevertheless, even relevant evidence can be
inadmissible if the risk of unfair prejudice substantially outweighs the evidence's
probative value. State v. Cavaness, 278 Kan. 469, 478, 101 P.3d 717 (2004). "If a party
36
argued that the photographs are overly repetitious, gruesome, or inflammatory, that is to
say, prejudicial, the standard of review is abuse of discretion." Riojas, 288 Kan. at 387.
Regarding the first question of relevance, the district court soundly determined the
photographs were relevant because autopsy photographs demonstrating the fact and
manner of death are relevant and admissible "even if the cause of death is not contested."
State v. Warledo, 286 Kan. 927, 946, 190 P.3d 937 (2008). Moreover, photographs are
relevant if they show the "extent, nature, and number of wounds inflicted" or if the
photographs assist the pathologist in explaining the cause of death. Riojas, 288 Kan. at
387. The State presented one photograph of Duran's brain, which corroborated the
coroner's testimony that one bullet travelled through Duran's brain at a downward
trajectory—a fact bearing on Seba's self-defense claims. All of the complained-of
photographs corroborated the coroner's testimony regarding the cause of the deaths
supporting both counts—facts the State sought to prove as to both first-degree murder
charges. We, therefore, conclude the district court did not err in finding the photographs
relevant.
Seba claims the photographs were nonetheless inadmissible because they were
"gruesome" and "undoubtedly caused anger and resentment towards Mr. Seba." While
most would describe the photographs as gruesome, that alone does not render the
photographs inadmissible. "'Gruesome crimes result in gruesome photographs,'" but
accurate representations of a crime typically do not unduly prejudice a defendant. State v.
Hernandez, 284 Kan. 74, 100, 159 P.3d 950 (2007). Here, Seba does not contend the
photographs were inaccurate and we do not find they were unduly prejudicial.
Finally, as to the cumulative nature of the photographs, Seba cites to an
unpublished Court of Appeals decision, State v. Glassburn-Hoesli, No. 89,441, 2004
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WL 48175 (Kan. App. 2004) (unpublished opinion), rev. denied 278 Kan. 849 (2004),
and claims that "where a party is able to describe the subject matter of photographs, the
photographs have 'little additional relevance' and should be excluded." Notwithstanding
that an unpublished opinion from the Court of Appeals has limited precedential value,
Seba mischaracterizes the holding in Glassburn-Hoesli. See Supreme Court Rule 7.04(g)
(2015 Kan. Ct. R. Annot. 64). There, the Court of Appeals simply held that the district
court did not abuse its discretion in excluding photographs that added little to the case—
the court did not hold that photographs with little additional relevance must be excluded.
2004 WL 48175, at *3.
Just as the district court in Glassburn-Hoesli did not abuse its discretion with its
evidentiary ruling excluding photographs, the district court here did not abuse its
discretion with its evidentiary ruling admitting relevant photographs.
ISSUE 7: The cumulative effect of trial errors did not deny Seba a fair trial.
Finally, Seba argues the cumulative effect of multiple errors in his case acted to
deny him a fair trial.
"In a cumulative error analysis, an appellate court aggregates all errors and, even
though those errors would individually be considered harmless, analyzes whether their
cumulative effect on the outcome of the trial is such that collectively they cannot be
determined to be harmless. See State v. Colston, 290 Kan. 952, 978-79, 235 P.3d 1234(2010). In other words, was the defendant's right to a fair trial violated because the
combined errors affected the outcome of the trial? In a cumulative error analysis, '[i]f any
of the errors being aggregated are constitutional in nature, the cumulative error must be
harmless beyond a reasonable doubt.' United States v. Toles, 297 F.3d 959, 972 (10th Cir.
2002).
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"In making the assessment of whether the cumulative errors are harmless error,
an appellate court examines the errors in the context of the record as a whole considering
how the district court dealt with the errors as they arose (including the efficacy, or lack of
efficacy, of any remedial efforts); the nature and number of errors committed and their
interrelationship, if any; and the strength of the evidence. . . . 'No prejudicial error may be
found upon this cumulative effect rule . . . if the evidence is overwhelming against the
defendant.' Colston, 290 Kan. 952, Syl. ¶ 15." State v. Tully, 293 Kan. 176, 205-06, 262
P.3d 314 (2011).
Here, the State conceded error regarding the failure to instruct the jury it could
consider voluntary intoxication as a defense to the lesser included offense of attempted
voluntary manslaughter. In addition, we have assumed error in the failure to instruct on
the lesser included offense instructions of reckless second-degree murder and reckless
involuntary manslaughter and imperfect self-defense voluntary manslaughter.
Seba has not asserted that constitutional error arose as to any individual issue,
although he contends that cumulatively the errors violated his right to a fair trial as
guaranteed by the Fourteenth Amendment to the United States Constitution and under the
Kansas Constitution Bill of Rights, § 10. But he does not suggest a standard for making
this determination. See State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012). ("degree of certainty by which the court must be
persuaded that the error did not affect the outcome will vary"). The clearly erroneous
standard applied to the conceded error and the assumed errors, each of which relates to an
unobjected-to instructional error. We will not belabor the question of what level of
certainty applies because Seba fails to convince us he is entitled to a new trial even if we
apply the most rigorous standard of constitutional error.
None of the conceded or assumed errors relates to another in a way that would
compound any possible jury confusion or other prejudice. Moreover, overwhelming
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evidence supports Seba's convictions. Furthermore, if we were to apply the constitutional
standard, our conclusion as to the harmless nature of each assumed or conceded error
would not change. Regarding the lesser included offense based on recklessness, the State
presented strong evidence of Seba's intent to kill and his premeditation and the evidence
that he acted recklessly was weak and disputed by Seba's own statements. And one of the
assumed errors was based on a defense theory the jury had the chance to consider—
voluntary intoxication. Adding another opportunity for the jury to consider the defense of
intoxication would not have changed the facts that negated its application. Finally, Seba's
own subjective statements defeat his claim of imperfect self-defense. As our previous
discussions reveal, one can conclude beyond a reasonable doubt that none of the claimed
errors would have affected the trial's outcome.
The cumulative impact of the conceded and assumed instructional errors in this
case does not require the reversal of Seba's convictions. We, therefore, affirm Seba's
convictions and sentences.
Affirmed.
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