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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 122,961

STATE OF KANSAS,

Appellee,

v.

MICHAEL J. PEARCE JR.,

Appellant.

SYLLABUS BY THE COURT

1.

Felony murder is statutorily defined as the killing of a human being in the 

commission of, attempt to commit, or flight from any inherently dangerous felony. 

Distribution of a controlled substance is designated in the statute as an inherently 

dangerous felony. 

2.

Felony murder contains two causation elements. First, the death must lie within 

the res gestae of the underlying crime. Second, there must be a direct causal connection 

between the felony and homicide, which exists unless an extraordinary intervening event 

supersedes the defendant's act and becomes the sole legal cause of death.

3.

Criminal violence that erupts during a sale of drugs is not an extraordinary 

intervening event. Such violence, when deadly, cannot supersede a defendant's criminal 

participation in the sale and will not cut off his or her criminal liability for felony murder.
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4.

Section 5 of the Kansas Constitution Bill of Rights does not guarantee defendants 

the right to have a jury determine the existence of sentence-enhancing prior convictions 

under the revised Kansas Sentencing Guidelines Act.

Appeal from Miami District Court; AMY L. HARTH, judge. Opinion filed December 17, 2021.

Affirmed. 

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause, and was on the brief

for appellant. 

Jason A. Vigil, assistant county attorney, argued the cause, and Elizabeth H. Sweeney-Reeder, 

county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

STANDRIDGE, J.: This is Michael J. Pearce's direct appeal following his 

convictions for first-degree felony murder, criminal threat, and distribution of 

methamphetamine. Pearce challenges his felony-murder conviction, arguing that the State 

failed to establish a direct causal connection between his involvement in distributing 

drugs and the death of the victim. But contrary to Pearce's argument, there was no 

extraordinary intervening event that worked to sever the causal connection between the 

victim's death and Pearce's participation in the underlying felony of methamphetamine 

distribution. Pearce also argues the district court violated his common-law right to a jury 

trial under section 5 of the Kansas Constitution Bill of Rights by making judicial findings 

of his prior convictions to establish his sentence. But we recently rejected the same

section 5 challenge to criminal history in State v. Albano, 313 Kan. 638, Syl. ¶ 4, 487 

P.3d 750 (2021). For these reasons, we affirm Pearce's conviction and sentence.
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FACTS

In the early morning hours of July 21, 2017, law enforcement was dispatched to 

the area of 311th Street and Lookout Road, a two-lane gravel road in Miami County 

between Osawatomie and Paola. Upon arrival, law enforcement discovered the body of 

Heather Briggs trapped underneath an SUV. Law enforcement contacted two individuals 

there: David Rhoades, who was trying to lift up the SUV, and Nichole Razo, who was 

frantic and crying hysterically. Law enforcement later spoke with Curtis Cooley, who 

was walking nearby. Briggs was pronounced dead at the scene. 

During the investigation, law enforcement identified and interviewed several other 

witnesses and discovered that Briggs' death occurred during a drug deal. Razo arranged 

through Cooley to purchase 7 grams of methamphetamine from Rhoades for $200. Razo 

and Rhoades agreed to meet on Lookout Road. Razo drove there in her SUV with 

Cooley, Seth Herron, and Kevin Stevens. April Lunsford drove another vehicle with 

Rhoades, Briggs, and Pearce as passengers. Upon arrival, Rhoades met with Razo and 

they exchanged the drugs and cash. A dispute then arose when both groups discovered 

they had received a lesser amount of drugs and money than agreed upon. Briggs and 

Pearce exited Lunsford's vehicle and argued with Razo through the driver's window of 

the SUV. The argument appeared to be resolved when Razo returned the drugs to Pearce,

and he gave back her money. Razo then drove away, running over Briggs in the process. 

Lunsford called 911 and left the area with Pearce. Rhoades and Razo stayed and tried to

lift the SUV off Briggs. Cooley, Stevens, and Herron ran from the scene; Cooley later 

returned after the emergency vehicles arrived. 

The State filed charges against all of the above individuals for their involvement in 

the events leading to Briggs' death. All but Stevens entered into plea agreements with the 
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State that required them to testify against Pearce, who was charged with one count each 

of first-degree felony murder based on the underlying felony of distribution of 

methamphetamine, aggravated assault, criminal threat, and distribution of 

methamphetamine. 

At Pearce's jury trial, the witnesses each testified about their recollection of the 

moments before Briggs' death. Herron testified that when the argument about the drugs 

and money broke out, Pearce pulled out a gun and waved it at Razo, stating: "'If the 

money doesn't show, I'm going to shoot you guys.'" Herron said that because of Pearce's 

threat, Razo drove off while Briggs was standing in front of the SUV. Herron claimed 

that as Razo drove away, he heard three gunshots. On cross-examination, Herron testified 

that shortly before Razo drove off, Razo told Briggs, "'Bitch, I'll run you over.'" But 

Herron maintained that Razo left because she was scared when Pearce pulled out the gun 

and that she was trying to get away. 

Razo testified that when Pearce approached her vehicle and returned her money in 

exchange for the methamphetamine, he directed Briggs to weigh the drugs. Razo claimed 

that Pearce said, "'Don't mess with me; if my dope is short, I will shoot you.'" When 

asked whether Pearce made any movements like he had a gun, Razo said, "He was going 

underneath his shirt, but I didn't wait to find out if he had a gun or not." According to 

Razo, she told her passengers to put their heads down and "took off," only stopping after 

realizing that she had hit Briggs. Razo testified that she did not mean to run over Briggs 

and claimed that she only drove off because Pearce threatened to shoot up the car. Razo 

denied she threatened to run over Briggs. 

Cooley testified that shortly before Razo ran over Briggs, he heard Pearce tell 

Razo, "'Don't do anything stupid, or I'll shoot the car up.'" Cooley said that everyone 
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panicked after the SUV stopped, and that he ran from the scene because he was afraid 

Pearce might start shooting. 

Rhoades first testified that he did not see Pearce with a gun or make any 

movements suggesting that he had a gun. Rhoades also denied hearing any gunshots and 

denied that Pearce had been involved in the drug transaction. Rhoades claimed that the 

sound the other witnesses had identified as gunshots was actually the sound of him hitting 

the back of Razo's SUV with nunchucks to get her to stop. Rhoades later admitted that 

when Pearce exited Lunsford's vehicle, Pearce said, "'I got this,'" and grabbed his pants as 

though he might have a gun. 

Lunsford testified that she did not see Pearce with a gun and that she never heard 

gunshots or saw anyone fire a weapon. According to Lunsford, Razo later admitted that 

she never saw a gun, but she thought Pearce was reaching for one. Lunsford denied that 

Pearce was involved in the drug deal or that he acted as an enforcer to the transaction. 

Stevens, who had declined the State's plea offer and was found not guilty of 

criminal charges arising from Briggs' death, testified for the defense. Stevens testified 

that he was asleep in Razo's vehicle and woke up to her arguing with Briggs. Stevens said 

that Briggs beat on Razo's vehicle and told Razo to come out and fight her. Stevens 

claimed that as Briggs walked away, Razo "hit the gas," steered her car toward Briggs, 

and ended up hitting her. Stevens denied seeing Pearce at all during the incident and 

further denied seeing anyone with a gun, hearing anyone threaten to shoot the car, or 

hearing gunshots. On cross-examination, the prosecutor impeached Stevens with his prior 

testimony from his jury trial. There, Stevens testified that shortly before Razo ran over 

Briggs, he "heard someone say something about shooting up the car" and that he "heard a 

couple of loud bangs" that he thought came from a gun. 
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The jury found Pearce guilty of first-degree felony murder, distribution of 

methamphetamine, and criminal threat. The jury found him not guilty of aggravated 

assault. Based on the severity level of the crimes Pearce committed and his criminal 

history, the district court imposed a controlling sentence of 130 months plus life in 

prison. 

Pearce filed this timely appeal. 

ANALYSIS

Pearce raises two arguments on appeal. First, he argues the State failed to prove 

the causation required to establish his guilt for felony murder. Second, Pearce argues the 

use of his prior convictions to determine his sentence violated his jury trial rights under 

section 5 of the Kansas Constitution Bill of Rights. We address each argument in turn. 

1. Sufficiency of the evidence: felony-murder conviction 

Pearce challenges the sufficiency of the evidence supporting his felony-murder 

conviction, arguing that the State failed to prove a sufficient causal connection between 

his participation in the distribution of methamphetamine and Briggs' death. 

At the outset, the parties disagree on the applicable standard of review. Citing 

State v. Sophophone, 270 Kan. 703, 704-06, 19 P.3d 70 (2001), Pearce claims that 

whether a defendant is subject to the felony-murder rule based on the causal relationship 

between the underlying felony and a victim's death is a question of law that is subject to 

unlimited review. But the State correctly points out that Sophophone addressed the 

specific legal issue of whether a defendant could be convicted of felony murder "for the 

killing of a co-felon not caused by his acts but by the lawful acts of a police officer acting 

in self-defense." See 270 Kan. at 705. Here, there is no similar question of law before us 
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because Pearce does not allege that Briggs' death resulted from a lawful act by a third 

party. See 270 Kan. at 706 ("[I]t is only because the act which resulted in the killing was 

a lawful one by a third party that a question of law exists as to whether Sophophone can 

be convicted of felony murder."). Instead, the standard of review for determining whether 

there is a causal connection between the underlying felony of distribution of 

methamphetamine and Briggs' death requires us to examine the sufficiency of the 

evidence. See State v. Beach, 275 Kan. 603, 611, 67 P.3d 121 (2003). The applicable 

standard of review is well known:

"'When the sufficiency of the evidence is challenged in a criminal case, we 

review the evidence in a light most favorable to the State to determine whether a rational 

fact-finder could have found the defendant guilty beyond a reasonable doubt. An 

appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on 

the credibility of witnesses.'" State v. Colson, 312 Kan. 739, 749-50, 480 P.3d 167 

(2021).

Felony murder is statutorily defined as the killing of a human being "in the 

commission of, attempt to commit, or flight from any inherently dangerous felony."

K.S.A. 2020 Supp. 21-5402(a)(2). Distribution of a controlled substance is expressly 

designated in the statute as an inherently dangerous felony. See K.S.A. 2020 Supp. 21-

5402(c)(1)(N); K.S.A. 2020 Supp. 21-5705(a)(1). Consistent with the statutory definition, 

the court instructed the jury that to find Pearce guilty of felony murder, the State had to

prove that (1) "[t]he defendant or another killed Heather Briggs" and (2) "[t]he killing 

was done while defendant was committing, attempting to commit or fleeing from 

Distribution of Controlled Substances-Methamphetamine." As for the causation required 

to establish felony murder, this court has clarified:

"The felony-murder statute requires two elements of causation. First, the death 

must occur within the res gestae of the underlying felony. Second, there must be a direct 
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causal connection between the felony and the homicide. Res gestae refers to acts that 

occurred 'before, during, or after the happening of the principal occurrence when those 

acts are so closely connected with the principal occurrence as to form, in reality, a part of 

the occurrence.' A direct causal connection exists unless an extraordinary intervening 

event supersedes the defendant's act and becomes the sole legal cause of death.

"There are three factors examined in determining whether a direct causal 

connection is present: time, distance, and the causal relationship between the underlying 

felony and the killing. [Citations omitted.]" State v. Phillips, 295 Kan. 929, 940-41, 287 

P.3d 245 (2012).

In challenging the State's proof of causation, Pearce presents no argument on the 

res gestae element. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018) (An issue 

not briefed is deemed waived or abandoned.). And we easily conclude that the State 

established the first causation element because Briggs' death occurred either during or 

shortly after the drug transaction.

Turning to the second causation element, Pearce makes two arguments in which 

he disputes a direct causal connection between Briggs' death and his participation in the 

drug transaction. First, Pearce asserts that Razo's act of running over Briggs was the sole 

cause of Briggs' death and constituted an extraordinary intervening event which 

superseded any causal connection between her death and his involvement in the drug 

sale. Second, he contends that Razo's act of killing Briggs is not subject to the felonymurder rule because Razo was a buyer of the drugs and was therefore not a co-felon in 

distributing them. 
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a. Extraordinary intervening event

In evaluating causation in a felony-murder case, "[o]nce it has been determined 

that the death lies within the res gestae of the underlying crime, . . . the direct causal 

connection can only be severed by an extraordinary intervening event." State v. Beltz, 305 

Kan. 773, 778, 388 P.3d 93 (2017). To determine whether an intervening event is 

extraordinary, we consider whether it was foreseeable. State v. Nesbitt, 308 Kan. 45, Syl. 

¶ 3, 417 P.3d 1058 (2018) ("An intervening event does not qualify as extraordinary if it 

was foreseeable.").

Pearce argues that Razo's act of running over Briggs constituted an extraordinary 

intervening event that severed any connection between her death and his participation in 

the distribution of methamphetamine. 

But this court has held that "[c]riminal violence that erupts during a drug sale is 

not an extraordinary intervening event. Such violence, when deadly, cannot supersede a 

defendant's criminal participation in the sale and will not cut off his or her criminal 

liability for felony murder." Beltz, 305 Kan. at 774-75, 779 (upholding felony-murder 

conviction stemming from drug shootout where victim was not intended target of robbery 

or shooting); see also State v. Jackson, 280 Kan. 541, 548-49, 124 P.3d 460 (2005) (drug 

supplier's act of shooting purchaser was not an extraordinary intervening event that 

superseded defendant's participation as intermediary in drug transaction); Beach, 275 

Kan. at 613-14 (direct causal connection existed between sale of methamphetamine and 

victim's death during attempted robbery; robbery was not extraordinary intervening event 

because defendant had knowingly created foreseeable target of violent crime by 

participating in sale of methamphetamine).
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This same rule holds true for a defendant who provokes a violent or defensive 

response by using or threatening to use a deadly weapon to commit a dangerous crime. 

See State v. Wilson, 308 Kan. 516, 526, 421 P.3d 742 (2018) ("Put simply, it is 

foreseeable that violence begets violence."); State v. McClelland, 301 Kan. 815, 823, 347 

P.3d 211 (2015) ("[The defendant] set off a chain of violent events when he planned on 

robbing a house and brought a gun in furtherance of that plan."); Phillips, 295 Kan. at 

942 ("[T]he causal relation is also satisfied because it is foreseeable that violence will 

erupt during an aggravated robbery in which the robber carries a gun. The very nature of 

an aggravated robbery is violent."); Jackson, 280 Kan. at 549 ("[The defendant] also 

acknowledged that selling drugs is a dangerous business and that most people carry guns 

to protect themselves during drug transactions.").

Pearce does not challenge the fact that he participated in the drug sale. Indeed, 

multiple witnesses testified that Pearce was directly involved in the dispute over the 

drugs and money. Several witnesses also testified that Pearce had a gun, Pearce could 

have had a gun, Pearce threatened to shoot up Razo's car, or that they heard gunshots. 

Razo claimed that she would not have driven the car into Briggs but for Pearce's threat to 

shoot up the car. For all of these reasons, Razo's act of hitting Briggs with her car did not 

constitute an extraordinary intervening event that broke the causal chain to become the 

sole cause of Briggs' death. Rather, it is foreseeable that the use or threatened use of a 

gun would also increase the potential for violence that already exists at a drug sale. See 

Wilson, 308 Kan. at 526 (finding it foreseeable that active shooter would "trigger the 

deeply embedded human fight or flight reflex," thereby causing deadly defensive action 

by others).
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b. Application of felony-murder rule

Next, Pearce contends that Razo's act of killing Briggs is not subject to the felonymurder rule because Razo was buying, not selling, the drugs and was therefore not a cofelon to the charged underlying felony—the distribution of methamphetamine. As 

support for his argument, Pearce relies on this court's decisions in Sophophone, 270 Kan. 

703, and State v. Murphy, 270 Kan. 804, 19 P.3d 80 (2001), abrogated on other grounds 

by State v. Martin, 285 Kan. 735, 175 P.3d 832 (2008). 

Pearce's reliance on Sophophone and Murphy is misplaced. Those two cases stand 

for the legal proposition that "the felony-murder rule does not apply when the lawful acts

of either a law enforcement officer or a victim of a crime cause the death of a co-felon."

State v. Bryant, 276 Kan. 485, 490, 78 P.3d 462 (2003), abrogated on other grounds by 

State v. Gleason, 277 Kan. 624, 88 P.3d 218 (2004); see Sophophone, 270 Kan. at 712-13 

(law enforcement action causing death); Murphy, 270 Kan. at 809 (victim action causing 

death). Pearce does not allege that Razo's act of running over Briggs was lawful. And 

Razo is neither a law enforcement officer nor a victim under these circumstances. 

Although the State charged Pearce with criminal threat based on his alleged threats to 

shoot Razo's car, Razo was hardly an innocent victim here. Rather, Razo was an active 

participant in the events that led to Briggs' death. Cf. Murphy, 270 Kan. at 804-05, 809 

(felony-murder rule inapplicable when killing caused by lawful acts of innocent victim of 

aggravated robbery and kidnapping acting in self-defense to protect his residence and its 

occupants). 

Pearce's suggestion that the felony-murder rule is inapplicable because Razo was 

the buyer and not the seller or distributer of the methamphetamine is also flawed. Razo's 

involvement in the drug distribution is irrelevant to establish Pearce's guilt for felony 

murder. The question before the jury was whether Briggs' death occurred while Pearce 
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was committing, attempting to commit, or fleeing from the underlying felony of 

distribution of methamphetamine. See K.S.A. 2020 Supp. 21-5402(a)(2). Pearce does not 

challenge the State's proof of his involvement in distributing methamphetamine. And 

Briggs' death followed directly from criminal violence during this drug sale, 

uninterrupted by any extraordinary intervening event. For these reasons, the evidence, 

when viewed in a light most favorable to the prosecution, was sufficient to establish 

beyond a reasonable doubt that Pearce was guilty of felony murder.

2. Section 5

Pearce argues that the Kansas Sentencing Guidelines Act (KSGA) violates his 

state constitutional right to a jury trial because it permits judicial fact-finding of prior 

convictions that enhance a defendant's sentence without first requiring the State to prove 

those convictions to a jury beyond a reasonable doubt. Pearce asserts that section 5 of the 

Kansas Constitution Bill of Rights requires a jury, not a judge, to determine penaltyenhancing prior conviction findings. Section 5 provides that "[t]he right of trial by jury 

shall be inviolate." Section 5 preserves the jury trial right as it existed at common law in 

1859 when the Kansas Constitution was ratified. State v. Albano, 313 Kan. 638, 640-41, 

487 P.3d 750 (2021). Pearce claims that "[p]rior to Kansas' statehood, American common 

law required any fact which increased the permissive penalty for a crime—inclusive of an 

offender's prior criminal convictions—to be proven to a jury beyond a reasonable doubt."

Pearce raises this constitutional argument for the first time on appeal. Generally, 

constitutional grounds for reversal asserted for the first time on appeal are not properly 

before the appellate court for review. State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 

(2018). Even so, we have recognized limited exceptions to this general rule. See State v. 

Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019) (listing three judicially created 

exceptions to the preservation requirement). Pearce claims two of these exceptions apply 
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here: (1) the newly asserted theory involves only a question of law arising on proved or 

admitted facts and is finally determinative of the case and (2) resolution of the issue is 

necessary to serve the ends of justice or to prevent the denial of fundamental rights. See 

309 Kan. at 995. Pearce asserts that his constitutional challenge involves a pure question 

of law and the denial of his fundamental right to a jury trial. 

In this instance there is no need to invoke an exception because this court recently 

rejected the same argument made by Pearce in Albano, 313 Kan. at 640-41.

In Albano, this court addressed whether the use of a defendant's criminal history—

without a finding by a jury—to increase the defendant's sentence violated section 5 of the 

Kansas Constitution. We examined Kansas common law and noted that, in Kansas, juries 

have traditionally determined guilt, and the role of the court is to determine punishment 

and issues relevant to it, including a defendant's criminal history. Finding no authority to 

support the contention that Kansas had adopted a common-law rule inconsistent with this 

traditional division of functions when the Kansas Constitution was adopted in 1859, we 

held that "[s]ection 5 of the Kansas Constitution Bill of Rights does not guarantee 

defendants the right to have a jury determine the existence of sentence-enhancing prior 

convictions under the revised Kansas Sentencing Guidelines Act." 313 Kan. 638, Syl. ¶ 4. 

Because criminal history findings made to impose a sentence fall within the 

exclusive purview of the court to determine punishment, the KSGA's method of 

determining a defendant's criminal history does not implicate a defendant's right to a jury 

trial under section 5 of the Kansas Constitution Bill of Rights. 313 Kan. at 656-57. For 

this reason, Pearce's constitutional challenge would necessarily fail. 

Affirmed.