1 IN THE SUPREME COURT O F THE STATE OF KANSAS
No. 117,945

S TATE OF K ANSAS , Appellee ,

v.

G ROVER D. J AMES , Appellant

.

SYLLABUS BY THE COURT

1. On the conflicting evidence adm itted at trial in this homicide case, the district judge erred by refusing to give l esser included offense instruc tions for reckless seconddegree murder, reckless involuntary manslaughter, and imperfect self-defense involuntary manslaughter. None of these errors, evaluated for harmlessness under the state statutory standard, was reversible standing alone.

2. A district judge is not require d to instruct a jury to conside r a lesser included homicide offense simultaneously w ith any greater homicide offen se.

3. Autopsy photographs, like other p hotographic evidence, are rel evant if they have a reasonable tendency to prove a mat erial fact. A district judge does not abuse his or her discretion by admitting autopsy pho tographs that are used by an expert witness to explain the path of a fatal bullet and th e victim's resulting skull fra ctures.2 4. A prosecutor commits error when he or she states during closin g arguments that a car was "stolen" despite an abs ence of evidence supporting a th eft or criminal deprivation. In this case, such an error was harmless under the governing constitutional
standard.

5. A continuance hearing is a critic al stage at which a criminal defendant has a constitutional right to be present, unless he or she has knowin gly and voluntarily waived that right. Assuming a violation of the defendant's right occur red in this case, the error was harmless under the governing constitutional standard.

6. Cumulative error does not requir e reversal of the defendant's convictions in this

case.

Appeal from Sedgwick District Court; S TEPHEN J. T ERNES , judge. Opinion filed June 28, 2019.
Affirmed.

Kai Tate Mann , of Kansas Appellate Defender Office, argued the cause, and Sam Schirer , of the same office, was on the briefs for appellant.

Matt J. Maloney , assistant district attorney, argued the cause, and Marc Bennett , district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the cou rt was delivered by3 B EIER , J.: This is defendant Grover D. J ames' direct appeal of his co nvictions for first-degree premeditated murder of Leon McClennon and criminal possession of a
firearm.

James challenges the district judg e's refusal to give certain l esser included
homicide instructions and failure to tell the jury to consider certain homicide offenses simultaneously. He also challenges the admission of autopsy pho tographs into evidence, alleges reversible prosecutori al error, and asserts he was depr ived of his constitutional right to be present at all criti cal stages of his trial. James also argues that cumulative error requires reversal of his convictions.

Although we identify errors in Ja mes' case, the errors are not reversible standing alone or cumulatively. For the re asons outlined below, we affir m James' convictions.

F ACTUAL AND P ROCEDURAL B ACKGROUND

Resolution of James' appellate i ssues require an unusually exte nsive review of the factual and procedural background of this case.

On the night of May 8 and into the early morning hours of May 9 , 2015, Rance Kindred's friends and family threw him a birthday party, held i n the basement of the Parrot-fa-Nalia dress shop in Wi chita. The party was attended b y a variety of Kindred's friends and family, including: Gr over "Boo" James, Kindred's f riend; August Hughes, James' girlfriend; Keialsha James, James' sister; Torey West, K indred's girlfriend and James' sister; Artadius "Ta Ta " Johnson, Kindred's son; and Leo n "Fat Head" McClennon, Johnson's cousin and Kindred's nephew.4 Johnson and McClennon ended up at the party after Johnson spoke with Kindred on the phone. At the party, Kindr ed introduced James and Johnso n for the first time. Kindred would testify that he ha d "wanted them to meet each oth er" but "it went bad right away because Ta Ta [Johnson] swo lled up," that is, swelled his body in a confrontational manner. See Urban Dictionary, htt ps://www.urbandictionary.com/d efine.php?term=swole (last visited June 28, 2019). T he tension between the two escal ated throughout the evening over a perception that J ohnson was "mugging" James. On more than one occasion, Kindred told Johnson th at he needed to "squash" his i ssues with James.

At some point in the evening, J ohnson left with McClennon and a nother cousin before he returned to the part y to "chill with [his] auntie and stuff." According to Johnson, Kindred made another a ttempt to convince Johnson to "s quash" things with James, which caused Jo hnson to "want[] to fight." But before th ings escalated too far,
another of Johnson's cousins—Anit a Jones—grabbed him and calmed him down.

After this confrontation, many o f the guests began leaving the party. Johnson and McClennon stayed to help clean up. James and Hughes initially l eft the party, but, Hughes would eventually testify , she remembered she had offered to help clean up; so
she and James went back.

Surveillance camera footage captu red what happened in the Parro t-fa-Nalia parking lot and outside the entra nce to the basement upon James and Hughes' return. The footage would later be ad mitted at James' trial.

When James and Hughes pulled into the Parrot-fa-Nalia parking l ot, Johnson and
McClennon were outside. At that point, Johnson and McClennon im mediately went down to the basement. Trial testimony would establish that the door at the bottom of the stairs
to the basement was shut and c ould not be opened from the outsi de.5 Surveillance footage from inside the door shows that Keialsha, James' sister, opened the door. Johns on and McClennon can b e seen coming throu gh the door, followed almost immediately by James. Hug hes came through the door a mom ent later.

The events that followed inside t he basement—outside the view o f any surveillance camera—were disputed at trial. It is undisputed, h owever, that James fired two shots, one of which hit Mc Clennon in the head, killing him. The internal surveillance footage then shows, approximately 37 seconds after the group ha d moved off camera, McClennon stumbling headfirst to the floor, where his motionles s body comes to rest. While McClennon's body is lying on the ground, James walks past it and back up the stairs. Hughes follows him.

After the shooting, James drove H ughes' car to Oklahoma. He was apprehended there and was charged with first-degree premeditated murder and unlawful possession of

a weapon.

James' first appearance on the charges was in later October 201 5. On December 14, 2015, James filed with the cle rk of the court a letter he h ad written to his thenattorney Brad Sylvester. The le tter asked Sylvester to take cer tain actions in his case. James asked Sylvester to "file a nd pursue any and all necessary paperwork to insure a speedy trial, I'd also ask you t o file a 180 day writ [and] a m otion for statutory speedy
trial." James later reiterated a request that Sylvester "vigor[ o]usly pursue" his "speedy trial" and asked that Sylvester " not continue my preliminary he aring . . . or continue my
trial ever." James also asked to be present at "any and all hea rings . . . when my case is d[i]scussed."6 After District Court Judge Dav id J. Kaufman found probable cau se at James' January 13, 2016, preliminary hear ing, James waived arraignment and the case was set for jury trial on Fe bruary 16, 2016.

On February 16, Syl vester requested a con tinuance in a filing titled, "Notice and Order Concerning Defense Counsel's Request to Continue Trial af ter Consultation with
the Defendant." District Court Judge Jeffrey E. Goering granted the request to continue
the case and reset trial for Mar ch 14, 2016. The form document, which was signed and submitted by Sylvester, containe d the following paragraph:

"'In submitting this request to the Court, the named defense co unsel represents to
the Court that counsel has consu lted with the named defendant a bout this continuance
and this continuance is to be cha rged to the defendant pursuant to K.S.A. 22-3402(g).'"

On March 16, Sylvester asked for another continuance, using an identical form document. Judge Goering again gr anted the request and reset tri al for June 6, 2016.

On April 14, James fil ed a motion seeking to dismiss counsel. James alleged an irreconcilable conflict and comp lete breakdown of communication . That same day, the motion was set for hearing on April 22, 2016.

James was present for the motion hearing before District Court Judge John J. Kisner, Jr. On April 22 Judge Kis ner acknowledged James' previo us concerns over a speedy trial. Judge Kisner informed James that recent caselaw r equired that any further continuances would require Jam es to sign off on them or attend a hearing. Judge Kisner
denied the motion to dismiss coun sel and informed James that an y appointment of new
counsel would mean more time for trial preparation. James respo nded, "I'm not worried
about the time."7 During the hearing, the court an d parties discovered that a Jun e 6 start date for
trial—the date that had been set on March 16—conflicted with th e court's schedule. Trial was reset for July 11, 2016. Judge Kisner advised James that th e time would not be charged to the State and asked i f James was agreeable to the ne w trial date. James said he understood and agreed to the new date.

On June 15, 2016, James filed an Objection to Continuance.

"COMES NOW, the Defendant, pro se , formally objecting to any continuance sought by either the State or defense counsel in the above enti tled action. The defendant further asserts his statutory, K.S .A. 22-3208(7), and Fourteent h Amendment Due Process right to appear at all 'critical stages' in a prosecution inclu ding any proceeding where the court may order that the Defe ndant has waived any constitutiona l or statutory right."

The same day, James moved to dis miss the case with prejudice. J ames alleged that his "statutory right to a fast a nd speedy trial, and his consti tutional right to Due Process and fast and speedy tria l" had been violated.

In his motion, James set out a timeline of events, alleging tha t his trial had been continued by his attorney on Febr uary 16, March 14, and June 6, outside of James' presence and against his "clea r wishes." James further alleged, "At no time has the defendant been present in the courtroom or by video, and asked if he agreed to the continuance or given the opportu nity to object to the continuan ce" and that "[t]here are no signed waivers of speedy trial o r signed acknowledgments of con tinuance." According to James, the time the State had to bring him to trial under K.S.A . 22-3402 began to run on January 13, 2016, the date of his preliminary hear ing, and expi red on June 12, 2016.8 The same day James fil ed his pro se motion , the district court clerk sent Sylvester a letter advising him of the fili ng and saying that no further action would be taken unless Sylvester directed otherwise.

On June 20, James filed another motion seeking to have Sylveste r replaced. In an affidavit filed the next day, Jam es alleged he had informed Syl vester in writing that he wanted to be present at all hear ings but Sylvester had neverthe less failed to consult him about any of the previous cont inuances. James fu rther alleged t hat he had not been given the opportunity to appear at any of the continuance hearings an d that, had he been present, he would have obj ected to any continuance.

On July 1, Judge Kaufman heard James' motion for new counsel. J ames explained
that he felt there was a communi cation breakdown between himsel f and Sylvester because of the continuances Syl vester had requested without Jam es' knowledge.

The State contradicted James' a ssertion that he had not been pr esent or known about any of the continuances, ale rting the court to James' pre sence at the April 22 hearing and his agreement to the continuance granted that day.

James acknowledged that the State was correct but insisted the April 22 continuance was not the only one.

"It's several continuance[s]. I h ave it in my ROA that it's bee n continued by the defense that I did not sign off on or anything, didn't know it. I also filed a motion for . . .
dismissal of case for fast and s peedy trial violation, constitu tional and statutory rights."

The State conceded that James ha d filed a motion to dismiss bas ed on a speedy
trial violation. The motion ha d not been docketed for hearing b ecause it was filed pro se.9 Judge Kaufman ultimately grante d James' request for new counsel

.

On July 11, Judge Goering contin ued the trial setting again des pite James' in-court refusal to agree to it. James' new counsel had yet to receive a ny discovery. The State
asked for a continuance of the t rial until September 12 because of the unavailability of one of its witnesses. Judge Goering granted the State's request over James' objection and set a "firm" trial date of September 12.

New counsel was appointed on t hree occasions in late August and early September, culminating in Steven Mank's appointme nt on Septembe r 1. Mank would represent James through the tria l but be replaced before senten cing.

On September 12, Judge Goering signed off on another trial cont inuance, continuing the case from Septem ber 12 to November 14, 2016. His order is a form
document similar to t hose filed by Sylvest er in February and Ma rch. However, unlike the earlier forms, this one required th e defendant's signature appr oving the continuance. The form shows James signed and dated it on September 10.

James' trial began on Novembe r 14, 2016, and was presided over by District Court Judge Stephen Ternes.

At trial, the video surveillance footage from Parrot-fa-Nalia w as introduced through the testimony of Wichita P olice Detective Robert Chisho lm.

Chisholm's testimony was follo wed by the testimony of Dr. Timot hy Gorrill, the forensic pathologist who conduct ed the autopsy of McClennon.10 Before Gorrill testified, Mank objected to admission of certain of the State's anticipated autopsy photograph exhibits. Mank argued that the e xhibits in question "are not necessary to describe the m anner of death or what happened to the victim in this case. They are rather strong photogra phs. . . . [W]e would object to them for being overly gruesome and . . . not warranted i n this case." The State argu ed that the challenged photos were necessary for Gorr ill to explain the autopsy.

Judge Ternes overruled the objec tion. He acknowledged that the photos were "somewhat graphic," but "autopsy photos tend to be that way." W ithout hearing Gorrill's testimony, Judge Ternes could no t say the challenged photos wer e unnecessary. Mank renewed his previous objection wh en the State introduced the au topsy photos during Gorrill's testimony. The judge aga in overruled the objection.

The first four photos showed McClennon's body, including closeu ps of his head and the gunshot wound. Specificall y, one image showed an "obvio us injury" at the
bottom of McClennon's ear. Anothe r showed a "skin defect, a hol e, a gunshot wound." Gorrill concluded that this inju ry was an entry wound because t here was no "exit defect" and they had "recovered a bullet along the path."

The following photos were the fo cus of the defense objection.

Exhibit 38 showed "the top of Mr . McClennon's skull" after his scalp had been "reflect[ed] back . . . with a scal pel." Gorrill highlighted a fracture in McClennon's skull that could be seen in the image.

Exhibit 39 showed the base of M cClennon's skull after a bone sc alpel or saw had been used "to remove that part of the skull" and then the brain removed. Gorrill noted multiple skull fractures in the im age. Based on the location of the fractures, Gorrill was11 able to describe the likely path of the bullet. Gorrill conclud ed that the bullet entered the left side of McClennon's head, t raveled through his skull, and caused the fractures shown in the photo.

Exhibit 40 showed "the interio r of [McClennon's] neck, the vert ebral column"
after the "neck structures" had been removed. Gorrill pointed o ut the projectile, which was "in one piece up here in the back of the neck" in the photo . He then indicated on his own body the approximate locati on where the projectile would ha ve been lodged. He described the location as "[k ]ind of in the neck area."

Gorrill concluded "within a reason able degree of medical certai nty" that the cause of McClennon's death was a "[g] unshot wound to the head" and th at the manner of death
was homicide.

The State's main witnesses on th e events that occurred off came ra in the basement
were Johnson and Kindred.

Johnson testified that he and Mc Clennon had not planned on goin g to the party that night, but Kindred called Johnson and asked him to come. J ohnson did not know
James but had seen him before.

After Johnson arrived at Parrot-fa-Nalia, he took a phone call in the parking lot. Kindred approached with James. Ki ndred "[t]old me [James'] name , said it was Boo, told Boo like who I was, told us we ne ed to squash whatever was goin g on."

Johnson said James was upset abo ut Johnson's romantic relations hip with James'
niece. Johnson said he told James , "I was grown, she was grown. " "He wanted me to12 leave her alone, told me to leav e her alone and end it. I felt disrespected by it because we both grown."

At that point, Johnson's cousin g rabbed him and they left the p arty with McClennon. They were gone 45 m inutes to an hour. After Johnson "cooled down a little bit," Johnson and McClennon return ed to the party. Johnson test ified that he had just gotten out of prison and "wanted to spend time with everybody."

Kindred and James approached Joh nson again after he returned. K indred told Johnson that he was "mugging" James and that

"you know, need to squash this, this and that. We need him on o ur side. I got upset. That's when I wanted to fight. That's wh at I like to do, so I wanted t o box. My cousin, Puddin, she came and stopped me. Anita Jon es, she came and grabbed me, took me to the back, you know. She tried to squash it, break it up. They kept messin g with me, so everybody got kind of mad. That's when my [dad] said the matter was over with, everybody started leaving and stuff."

Johnson denied "mugging" Jame s at the party, saying, "No. If I was mugging him, I would have approached him." For clarity, the Urban Dictionary d escribes "mugging" as "star[ing] or look[ing] at some one with malignant thoughts or i ntentions." Urban Dictionary, https://www.urbandi ctionary.com/define.php?term=Mug ging (last visited June 28, 2019).

As most people, including James, left the party, Johnson and M cClennon stayed
with Kindred and several m embers of James' family.

Just after Johnson fi nished helping to load speakers in the pa rking lot, he "heard some tires screeching pulling in t he parking lot." Johnson look ed up and saw "a black13 Jeep Cherokee . . . pulling in real fast." The driver was weari ng a blue hat and a blue shirt, which was what James had been wearing.

Johnson testified, "[I] [g]rabbed my cousin and ran downstairs , back down the
stairs but the door was shut." They "[b]ange d on the door, . . . tried to get in before he
came . . . around the corner." Neith er he nor McClennon was car rying a weapon, and Johnson thought James was coming after him,

"[b]ecause we had gotten into it . I been in the streets for a l ot of years, you know. So my intuition kicked in. I already knew what was going on. He pulle d in too fast, didn't look right. We had been getting into it. It wasn't right, something wasn't right. Plus no matter what, he was coming back. No matter what, I had my little cousi n with me so I had to protect him, tried to."

Keialsha opened the door. Johnso n and McClennon pushed their wa y in and ran to Kindred, who was standing by th e dance floor talking to his fam ily. Johnson to ld Kindred that "his home boy was coming down the stairs with his gun, to get [Johnson]."

Kindred told Johnson that

"it was my fault, deal with it. I always wanted to be a gang me mber . . . . [B]asically saying, you know, it's on me. I got to deal with that . . . he ain't going to jump on it. He stood on the left on the side of me. Fat Head was on the right side of me. I was in the middle. He just told me it's your fault basically."

Kindred did not try to tal k to James but Johnson

"kept telling [James] to put the gun down, kept telling him whe n he walked in there, came in there, he kept, you know, hollering am I tripping out ' cause this, this and that. I14 kept telling him put the gun dow n, man, just put the gun down. You ain't got to go there, just put the gun down."

In addition, James' "mom and his sisters was in front of him te lling him to stop. It wasn't worth it, just an argument . . . . T hat's when he fired in the air. I grabbed my cousin, turned around, told him to come on."

After the first shot was fired , Johnson ran toward the back do or. He did not look back because he felt "bullets flying past [his] head." Johnson soon realized McClennon
was not behind him. The door had locked behind Johnson, and he ran to the front of the building to find out what had ha ppened. When Johnson descended the front stairs to the basement, he saw McClennon's body on the floor.

Johnson also testified that non e of this would have happened i f he had brought a gun with him, because he woul d have shot James first.

During cross-examination, Johns on admitted that he had wanted t o fight James that night but claimed that McCl ennon did not want to fight. Wh en confronted with a description of his earlier state ment to police "that your cousi n took his shirt off to fight [James]," Johnson called defens e counsel Mank a liar and denied making the statement.

Mank also asked Johnson if a thi rd person, someone named "Travi s," was also at Parrot-fa-Nalia that night. Johns on admitted that Travis had be en there "for like ten
minutes." Travis' last name is not included anywhere in the tri al transcript.

Kindred's version of events were presented to the jury through a video taken the day after the shooting and throug h live testimony. In the video , Kindred had explained what happened to McClennon's sister.15 Kindred testified that Johnson had called him on the night of t he party to see if Johnson could come to the party and bring McClennon. Kindred to ld him, "No. The police be checking this building. [McClennon's] underage." Desp ite Johnson's disregard of this warning, Kindr ed introduced Johnson to James because he wanted them to meet, but "it went bad right away b ecause Ta Ta swolled up."

In the video, Kindred w as asked whether Jam es had said he was l eaving the party to get a gun. Accordin g to one unidentified person who can be h eard in the video, several people had heard James make such a statement. Another unidentif ied person also reported hearing James' mother say that James was leaving to ge t a gun. Kindred said that was not true, based on James' post-shooting comments to him. Ja mes had told Kindred that he always had a gun with h im, and that if he had wanted to shoot anyone, he would
have done so earlier.

Kindred also said in the video t hat the door into the basement had been shut
because he wanted to sh ow everyone how Johnson had been "muggin g" James throughout the night; Kindred di d not want Johnson to walk in d uring the demonstration.

Kindred also told McClennon's si ster that he told "Ta Ta" after the first altercation to leave "Boo" alone because they needed to keep "Boo" on their "team." According to Kindred, "Boo" was "a killer." H e will "kill [someone] out here and don't give a fuck
about it."

In the video, Kindred also said Johnson and McClennon had run i nto the basement
and then run behind him. Johnson and McClennon were telling Kin dred that James was his "boy" and that he could stop James. Kindred said he walked toward James and tried to explain who McClennon and Johnso n were and persuade James not t o shoot them.16 Kindred believed he had convinced James to stop, but Johnson an d McClennon were standing on the dance floor, actin g as if they were preparing t o fight, and saying "let that nigga go."

Kindred told James that if he wa nted to fight Johnson and McCle nnon, he could, but he needed to put the gun aw ay. Believing James had put the gun in his pocket, Kindred moved out of the way, e xpecting a fight to ensue. But, as soon as he moved out of the way, he saw James put the gun in his right hand and shoo t into the air.

In the video, Kindred further e xplained Johnson and McClennon r an different
directions when James fired. Ki ndred ran behind James. Kindred did not say whether he
believed James intended to hit Mc Clennon with the second shot f ired. He saw
McClennon start to stumble and go down. Initially he thought Mc Clennon was just ducking; Kindred realized McClen non had been hit when his body went limp.

After being shown the video at t rial, Kindred testified he had lied when he told McClennon's sister James alway s "roll[ed]" with a gun. Accordin g to Kindred, "if I know he had a gun, I would have told h im don't come to my party with no gun."

During cross-examination, Kindred testified that Johnson had "c alled some guys to come to the party." Kindred did not think they should be at the party, "because the guys he called, I know that they g ang members. They Folks."

After Johnson's friends arrived, som eone told Kindred that Trav is had a gun.
Kindred confronted Travis and told him: "If you got a gun, you better get it out of here right now." Travis told Kindred t hat he had a gun but "didn't b ring it up here for no problems." Kindred started to wa lk away, but Travis called him back and told him, "If I bring a pistol to something like this, I ain't bringing it to g ive to nobody els e. I can use it17 myself." Kindred replied, "[Y]e ah, but you ain't going to do it up in here because if you do, I'm going to fuck you up."

Kindred was asked if he "remem ber[ed] [Travis] being there prio r to the shooting, like immediately prior to the shoo ting" and responded, "He was there the whole time."

After the State concluded its cas e-in-chief, Hughes, West, and James testified for
the defense.

Hughes testified that she and James left the party to go home b ut came back when
she remembered she had promised to help cl ean up. When they returned to Parrot-faNalia, Hughes stayed outside fo r a moment to smoke before going downstairs.

When she got downstairs, she saw a confrontation around the dan ce floor. "I just seen a crowd of people rushing towards Boo as I was walking tow ards his mom who was sitting at the table cleaning it off." She saw "three or four b oys" approaching James, one of whom was Travis. As the group approached James, she heard on e of them say "what's up now[?]"

Hughes then heard a gunshot and started to run. She heard a sec ond gunshot and, when she looked up, saw McClenn on on the floor. Hughes then con tinued running, leaving Parrot-fa-Nalia with som eone else. By the time she reac hed the outside of the building, both James and her car were gone.

West testified that some of Joh nson's friends, including Travis , had shown up at the party earlier in the evening . At some point, she noticed Tr avis had a pisto l. West told Kindred about the pistol but wa s not sure whether he had done a nything about it.18 West did not see what had caused the final confrontation. She e xplained,

"We were cleaning up. The party was over. Pretty much everyone was gone. It was more a majority of women dow n in the party still cleaning u p. We heard a big bam at the door. I'm not sure who opene d the door, door came flinging open.

"I saw my brother and girlfriend back up. He had her behind him like backing up. Three guys came . . . . [James] w as pushing her around [a bench ] so that he wouldn't fall and get back there. One guy came on the side, one stood on a th ing right here (indicating)
and one stood on the dance floor."

West claimed Travis was there at the time. "He was standing by the long side of the thing on the side of the bu ilding like inside the building like it separated the dance
floor and the bar." Acco rding to West, Travi s was wearing an or ange shirt. She heard someone yelling, "[Y]eah, what's up nigga now[?]" When asked wh o yelled, West said it
was Johnson.

West saw Johnson take his hoodi e off like "[h]e wanted to fight ." She saw that "Leon [McClennon] was in his stance like trying to go towards w here everybody else was at and [Travis] was standing alon g the side of that bank with h is hand behind his back."

West then heard but did not see a gunshot. She did not know who had fired. When she heard the shot, she ducked and then heard a second shot. We st stayed down after the
second shot and did not see what happened. When she got up, eve ryone was gone. She
saw McClennon on the floor and s tayed with him until police arr ived.

James testified that he did not know either Johnson or McClenno n before the party and did not know anyone in the " younger" group at the party. Wh en James met Johnson, it did not go well because o f a "little thing on Facebook" betw een Johnson and James'19 nephew. According to James, afte r the initial introduction, Joh nson was "mugging" him as if he had a problem with him.

James and Hughes left the party , but came back because Hughes w anted "to help [and] wanted to get a plate." W hen they returned, James walked into the basement immediately after Johnson and Mc Clennon. James' testimony conti nued:

"When I come in, Rance[ Kindred is] standing right there. I'm w alking up to Rance. August [Hughes] walks towar d my mother when I walked in. Ta is like what up now, nigga. So I look at him like you want to trip now. So he w as standing maybe I'd say 10, 15 feet into the dance floor.

"I walk right past Fat Head when I walked in. He didn't say not hing to me. I didn't have no problem with the brother. I don't know him. So h e was standing there. He
walked behind me like towards the—more towards the tables.

"Then there was another cat out t here at that time. I didn't kn ow who he was. He had on an orange shirt. He was st anding there. Rance called to me. He was like kind of pushing me back. So we stood there for a minute[.]

. . . .

[Kindred was saying,] Calm down, bro. Don't trip on that. Don't trip on that, and then after that it just—everything exploded from there I mean.

. . . .

"Ta Ta is standing there like this, right. Yeah. What's up now nigga, puffing all up (indicating). I see Fat Head t ake off his hoodie. He's stand ing like to the side of me. The other dude is standing back there, but he's standing back t here like this like yeah, you know (indicating [with right hand behind his back])."20 James interpreted the "other dud e['s]" action to mean "[t]hat h e had a gun. He had something." James did not see a gun but saw "something flash, w as like silverish."

The three kept coming toward J ames, James said. "I pulled out my gun and I fired and then I fired again." James te stified that he was not firing at anyone.

James also testified that he ha d the gun on his "hip" the enti re night and that he was carrying it because it is

"[c]razy out here, man. I just lost an acquaintance of mine may be two weeks before that. My niece, Reesha . . . was killed a bout a month before that. An other friend of mine was on the highway and the car pulled up beside him and gun—tried t o gun him down. It's just—I was keeping it for protection.

. . . .

"I was in fear for my life. I didn't know what they was going t o do to me. I seen a friend of mine maybe five or six months ago, some dudes jumped him, stomped him crushing his skull, killed him."

After the shooting, James left Parrot-fa-Nalia. "I get in the t ruck, and I just drove, man." He ended up in Oklahoma. He was,

"[s]cared man. I had never been in no situation like that in my life. Then when I did talk, I had talked to Rance [Kindred]. When he told me like the baby, you know, Fat [Head] had died, that was a baby. That w as a kid, dude. That wasn't my intention to hurt that man. I didn't know him. I have a 17-year-old son. I don't know what I would do if it was my son."21 James requested jury instructi ons on the lesser included crimes of second-degree murder, voluntary manslaughter, a nd involuntary manslaughter fo r the first-degree murder charge.

The State opposed an instructi on on second-degree murder under a theory that
James had killed McClennon "uni ntentionally but recklessly unde r circumstances that
show extreme indifference to the value of human life." See K.S. A. 2018 Supp. 21- 5403(a)(2). It argued that the evidence was "clear [James] fire d two shots" and the "second shot was fired directly a t Fat Head and hit him in the left side of the face. . . .
That was an intentional act." If a second-degree murder instruc tion were to be given, the State urged Judge Ternes to limit it to intentional second-degr ee murder. See K.S.A. 2018 Supp. 21-5403(a)(1).

Mank argued that sufficient ev idence supported instruction on b oth theories of second-degree murder.

"Mr. Kindred testified [James] to ld him he didn't mean to hit a nybody. The fact that one shot apparently was fired strai ght up into the ceiling I think goes to show that at least as far as the first shot goes, he wasn't intending to shoot or hit anybody, ever."

Judge Ternes agreed with the Sta te. "The way that I see it is i t would be
inconsistent I believe with the testimony of the defendant who clearly said at least twice that he was fearful of this gr oup that he says surrounded him. It would be inconsistent then for him to fire recklessly. " On the same rationale, Judge Ternes also denied James' request to instruct on reckless involuntary manslaughter. Mank objected unsuccessfully.22 The State also opposed the volunt ary manslaughter instruction s ought by the defense, but Judge Ternes ultimat ely included voluntary manslau ghter instructions on the theory of imperf ect self-defense.

Mank also sought an involuntar y manslaughter instruction on the theory James
committed a "lawful act in an unl awful manner," i.e., "excessiv e use of self-defense." See K.S.A. 2015 Supp. 21-5405(a)(4). T he State objected, arguing it was not appropriate because it required an " unintentional act a nd all the evidence shows this was an
intentional act."

The judge declined to give the i nstruction because he could not "go all the way to involuntary manslaughter." He di d not believe the evidence supp orted such an
instruction.

The final instructions read to th e jury before closing argument s included:

"Instruction No. 4, in Count 1 the defendant is charged with mu rder in the first degree. The defendant pleads not guilty. To establish this char ge each of the following claims must be proved: No. 1, t he defendant intentionally kill ed Leon McClennon. No. 2, the killing was done with premeditation. No. 3, this act occ urred on or about the 9th day of May, 2015, in Sedgwick County, Kansas.

. . . .

"Instruction No. 5, if you do not agree that the defendant is g uilty of murder in the first degree, you should the n consider the lesser included offense of murder in the second degree.

"To establish this charge each of the following claims must be proved: No. 1, the defendant intentionally killed Leon McClennon. No. 2, this act occurred on or about the23 9th day of May, 2015, in Sedgwick County, Kansas. A defendant a cts intentionally when it is the defendant's desire or conscious objective to do the a ct complained about by the
State.

"Instruction No. 6, if you do not agree that the defendant is g uilty of murder in the second degree, you should then consider the lesser included offense of voluntary manslaughter. To establish this charge each of the following cl aims must be proved: No. 1, the defendant knowingly kille d Leon McClennon. No. 2, it was done upon an
unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person. No. 3, th is act occurred on or about the 9 th day of May, 2015, in Sedgwick County, Kansas.

. . . .

"No. 7, the offense of murder in the first degree with which th e defendant is charged includes the lesser offenses of murder in the second de gree and voluntary manslaughter. You may . . . find th e defendant guilty of murder in the first degree or murder in the second degree or voluntary manslaughter or not gu ilty.

"When there is a reasonable doubt as to which of the two or mor e offenses defendant is guilty, he may be convicted of the lesser offense only, provided the lesser offense has been proven beyond a reasonable doubt. Your presidi ng juror should then mark the appropriate verdict.

"Instruction No. 8, defendant cla ims his use of force was permi tted as the defense of a person. [The] defendant is permitted to use physical force against another person including using a weapon when and to the extent that it appears to him and he reasonably believes such physical force is n ecessary to defend himself aga inst the other person's
imminent use of unlawful force.

"Reasonable belief requires both a belief by defendant and the existence of facts that will persuade a reasonable pe rson to that belief. Defendan t is permitted to use against another person physical force that is likely to cause death or great bodily harm only when24 and to the extent that it appears to him that he reasonably bel ieves such force is necessary to prevent death or great bodily harm to himself from the other person's imminent use of
unlawful force.

"Reasonable belief requires both a belief by defendant and the existence of facts that would persuade a reasonable person to that belief. When us e of force is permitted as self-defense, there is no requirement to believe this presumpti on may be overcome if you are persuaded by a reasonable dou bt that the person did not rea sonably believe that use of force likely to cause death or g reat bodily harm was necessary to prevent imminent death or great bodily harm to himself.

. . . .

"Instruction No. 10, a person who initially provokes the use of force against himself is not a person permitted to use force to defend himsel f unless the person reasonably believes that he is in present danger of death or gr eat bodily harm and he has used every reasonable means to escape such danger other than th e use of physical force which is likely to cause death or great bodily harm to another person or the person has in good faith withdrawn from physical contact with the other perso n and indicates clearly to the other person that he desir es to withdraw and stop the use o f force but the other person
continues or resumes the use of force."

During the State's rebuttal cl osing argument, the prosecutor a rgued that James
would not have fled to Oklahoma if the shooting were justified.

"I submit to you a justified ma n who is killing because he's so scared does not run down the road to Oklahoma in a stolen vehicle. A justified man who has a right to that self-defense to protect him self or the ones he loves from someone else does not pitch his weapon out at 47th and Pawnee as he says he did. Those are not the actions of a justified man acting in defense of himself."25 The jury found James guilty of first-degree murder and criminal possession of a

weapon.

Judge Ternes sentenced James t o a Hard 50 life sentence for fir st-degree murder
and a concurrent 21-month se ntence for criminal possession.

R EFUSAL TO I NSTRUCT ON R ECKLESSNESS B ASED H OMICIDES

James argues that Judge Ternes' re fusal to instruct the jury on reckless seconddegree murder and reckless invol untary manslaughter constitutes reversible error.

An appellate court performs a f our-step review of challenges to jury instructions:

"'"'(1) First, the appellate cour t should consider the reviewab ility of the issue from both jurisdiction and preser vation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to d etermine whether the instruction was legally appropr iate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; an d (4) finally, if the district court erred, the appellate court must determine whether the err or was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied [565 U.S. 1221] (2012).' [Citation omitted.]

"'"'Generally, a defendant is en titled to instructions on the l aw applicable to his or her defense theory if there is s ufficient evidence for a ration al factfinder to find for the defendant on that theory. [Citati on omitted.] And if that defen dant requests an instruction at trial, the court must view the evidence in the light most fa vorable to the defendant. [Citations omitted.]'

"'"We examine 'jury instructions as a whole, without focusing o n any single instruction, in order to determine whether they properly and fa irly state the applicable law26 or whether it is reasonable to c onclude that they could have mi sled the jury.' [Citation omitted.]" [ State v. ] Hilt , 299 Kan. [176] at 184-85 [322 P.3d 367 (2014)].' State v.
Mattox , 305 Kan. 1015, 1020, 390 P.3d 514 (2017)." State v. Pulliam , 308 Kan. 1354, 1361-62, 430 P.3d 39 (2018).

James requested both instructi ons and objected to their exclusi on. This challenge is therefore properly preserved.

We next examine whether the requ ested instructions were legally appropriate.

"An instruction on a lesser included crime is legally appropria te. State v. Plummer , 295 Kan. 156, 161, 283 P.3d 202 (20 12). And a lesser included crime includes a 'lesser degree
of the same crime.' K.S.A. 2017 S upp. 21-5109(b)(1). This court has recognized five degrees of homicide. In descendi ng magnitude, they are capital murder, first-degree murder, second-degree murder, voluntary manslaughter, and invol untary manslaughter.
State v. Carter , 305 Kan. 139, 161, 380 P .3d 189 (2016) (citing State v. Cheever , 295 Kan. 229, 258-59, 284 P.3d 1007 [2012])." Pulliam , 308 Kan. at 1362.

Second-degree murder and involunt ary manslaughter are both less er degrees of firstdegree murder and would have been legally appropriate instructi ons.

Judge Ternes' rejection of the re quested instructions turned on the element framing the third step of our appellate a nalysis, whether the instructi ons were factually appropriate. His inter pretation of the admitted evidence was th at, even under James' selfdefense version, James acted i ntentionally, because he feared t he men surrounding him.

Both crimes at issue involve "r eckless" behavior, but their deg rees of recklessness differ. Reckless second-degree mu rder requires the killing of a human being committed "unintentionally but recklessly un der circumstances manifesting extreme indifference to
the value of human life." K. S.A. 2018 Supp. 21-5403(a)(2).27 Reckless involuntary manslaughte r requires only the killing of a human being committed "[r]ecklessly ." K.S.A. 2018 Supp. 21-5405(a)(1). A "p erson acts 'recklessly' or is 'reckless,' when su ch person consciously disregards a substa ntial and unjustifiable risk
that circumstances exist or tha t a result will follow, and such disregard constitutes a gross
deviation from the standard of c are which a reasonable person w ould exercise in the situation." K.S.A. 2018 Sup p. 21-5202(j); see also State v. Gonzalez , 307 Kan. 575, 581, 412 P.3d 968 (2018) (outlining re quirements of unintentional se cond-degree murder, reckless involuntary manslaughter).

We have previously addressed the differences between the intent ional and reckless forms of second-degree murder in State v. Deal , 293 Kan. 872, 884, 269 P.3d 1282 (2012). In that case, we noted "bl ind conduct, while one form o f reckless conduct, is not the only type of conduct that can be reckless; even an intentio nal blow can result in an unintentional but reckless killing. " 293 Kan. at 882. "[I]t is not the intent to inflict a blow
but the intent to kill that is th e focal point" of the distinct ion between intentional seconddegree murder and unintentional but reckless second-degree murd er. 293 Kan. at 882. "[T]he unambiguous language of [t he second-degree murder] statu te requires the killing— the result —to be either intentional or uni ntentional." (Emphasis added.) 293 Kan. at 883 (citing substantivel y identical predecessor statute ). In short, evidence that James intended the underlying act of shooting is inadequate to rule out an instruction on
reckless second-d egree murder. The questio n is whether there wa s evidence that a killing was committed recklessly.

Although we decided Deal on law that predated the legislature's 2011 criminal code recodification, the recodifi ed statute on cu lpable mental states is consistent with its holding. A person's conduct is i ntentional with respect to a re sult "when it is such person's conscious obj ective or desire to . . . cause the resul t." K.S.A. 2018 Supp. 21-28 5202(h). This stands in contrast to the definitions of "reckles sly" and "reckless" under K.S.A. 2018 Supp. 21-5202(j).

Looking at the evidence in this case in a light most favorable to James, as this court must, we conclude that a jury instruction on reckless sec ond-degree murder was factually appropriate. There was testimony and physical evidenc e that James did not
intend to kill McClennon. The first shot fired by James went into the air and hit the ceiling. James testified that he was not firing at anyone when he shot the second time. This testimony echoed what he had told Kindred when he learned McClennon was dead. Although James' version was disp uted, there was enough that a r easonable juror could have convicted James of killing Mc Clennon recklessly while mani festing extreme
indifference to the value of hum an life. The State's responsive assertion that there is no testimony that James fired "bli ndly" or fired only "warning sho ts" requires too much to justify an instruction for reck less second-degree murder. The i nstruction was factually appropriate, and the district judge's refusal to give the instr uction was error.

It does not follow automatically that facts supporting a reckle ss second-degree murder instruction also support a reckless involuntary manslaug hter instruction because
of the difference in d egree of recklessness between the crimes mentioned above. We thus must examine the evidence supp orting reckless involuntary mansl aughter.

Recently, in State v. Gonzalez , 307 Kan. 575, 412 P.3d 968 (2018), this court rebuffed a constitutional vaguene ss challenge to the greater cr ime, differentiating its recklessness requirements from th at of involuntary manslaughter along the way.

"'To convict a defendant charg ed with unintentional second-degr ee murder, the State is required to prove not only that t he defendant consciously disre garded a substantial and unjustifiable risk that death will result from existing circums tances but also that the29 defendant did so under "circumsta nces manifesting extreme indif ference to the value of human life." [Citation omitted.] Although recklessness is an es sential element to prove the offense in both statutes, the unintentional second-degree m urder statute still requires
an additional element.'" Gonzalez , 307 Kan. at 583.

The "difference between unintent ional second-deg ree murder and involuntary manslaughter is one of degree and not one of kind." 307 Kan. at 583. There is a "recognized spectrum of culpa bility for the results of one's re ckless acts." 307 Kan. at
583. Recklessness attributable t o "'purpose or knowledge is tre ated as depraved heart second-degree murder, and less extreme recklessness is punished as manslaughter.'" 307 Kan. at 583 (quoting State v. Robinson , 261 Kan. 865, 877-78, 9 34 P.2d 38 [1997]). In Gonzalez , the "instructions required the j ury to place [the defendant's] conduct on that spectrum by deciding whether the f acts showed he was not just r eckless in disregarding the risk that [the victim] would die, but also extremely indiff erent to the value of human
life." Gonzalez , 307 Kan. at 583.

This being said, on the particul ar evidentiary record before us today, an instruction on reckless involuntary manslaugh ter also was factually appropr iate. If jurors accepted that James acted recklessly, the evidence did not foreclose cul pability at either end of the spectrum for the results of his re ckless acts. The varying acco unts of what happened
inside the basement—and outsid e view of any surveillance camera s—presented the jury with a range of possibilities. It w as the jury's task, not the district judge's, to consider the
evidence and assess factors—such as the number of people in the basement and James' reasons for shooting—before reachi ng a conclusion on whether Ja mes' recklessness rose to the second-degree murder level of extreme indifference to th e value of human life. The district judge also erred in refusing to give the reckless invo luntary manslaughter
instruction.30 We now turn to harmlessness. Jam es argues that each of the erro rs identified is a
constitutional flaw in his trial. See State v. Salary , 301 Kan. 586, 599 , 343 P.3d 1165 (2015). He urges us to reconsider our caselaw applying a statut ory harmlessness test to such instruction error. He argues that these errors implicate f ederal and state constitutional guarantees of a def endant's right to present his or her theory of defense. See
State v. Evans , 275 Kan. 95, 102, 62 P.3d 220 (2003) (defendant entitled to p resent theory of his or h er defense; exclusion of evidence integral to theory violates defendant's fundamental right to fair trial).

James does not cite any caselaw o r other authority establishing the rule he seeks,
and he does not otherwise articul ate an argument sufficient to persuade a majority of this court to reconsider application o f the statutory test in these circumstances. See State v.
Torres , 280 Kan. 309, 331, 121 P.3d 429 (2005) (simply pressing point without pertinent authority, without showing why po int sound despite lack of supp orting authority or in face of contrary authority akin to failing to brief issue; when party fails to brief issue, issue considered waived, abandon ed). We therefore continue to a pply the statutory test today.

Under that test we "must be persu aded that there is no reasonab le probability that
the error will or did affect t he outcome of the trial." State v. Ward , 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). Th e burden of demonstrating harmlessness is on the party be nefiting from the error, which, in this case, is the State.
See State v. Preston , 294 Kan. 27, Syl. ¶ 3 , 272 P.3d 1275 (2012).

To reach a verdict in this case th e jury had to re solve the con flict between two competing versions of the criti cal moments surrounding the shoo ting of McClennon. Either James returned to the pa rty intending to do harm to John son and McClennon or he
returned for other reasons and the n was forced to react to a le thal threat from Johnson,31 McClennon, and Travis. The jury found James guilty of first-deg ree murder, which required jurors to conclude not only that the killing was inten tional but also premeditated. See K.S.A. 2018 Supp. 21-5402(a )(1). This verdict eliminates th e possibility that the jury viewed the killing as merely reck less, and we can safely say th ere is no reasonable probability the judge's refusal t o instruct on either or both r eckless second-d egree murder and involuntary manslaughter aff ected the outcome of the trial.

R EFUSAL TO I NSTRUCT ON I MPERFECT S ELF -D EFENSE I NVOLUNTARY M ANSLAUGHTER

James' second appellate challenge mirrors his first. He argues that the jury should have been instructed on imperf ect self-defense involuntary mans laughter. Our analysis of this issue uses the same analy tical framework and standard of r eview outlined for his first
issue.

Imperfect self-defense based on a "lawful act [committed] in an unlawful manner"
has been characterized as a "l awful exercise of self-defense, b ut with excessive force," State v. McCullough , 293 Kan. 970, 976, 270 P.3d 1 142 (2012), and was first recogn ized
in State v. Gregory , 218 Kan. 180, 185-86, 5 42 P.2d 1051 (1975).

James preserved this issue by re questing the instruction and ob jecting to its
omission.

The instruction was legally app ropriate, because involuntary ma nslaughter is a lesser degree of homicide and therefore a lesser included crime of first-degree murder.

The State argues in its brief tha t the instruction was not fact ually appropriate because the crime requires the d efendant's act t o be unintentio nal. It cites relatively recent opinions from the Court of Appeal s interpreting the current ver sion of involuntary32 manslaughter, as well as older opi nions from this court that in terpreted the prerecodification statute. Although these authorities were good la w when the State's brief was filed, this court has since held that there is no requireme nt that "lawful act in an unlawful manner" involuntary mans laughter be committed unintent ionally. Pulliam , 308 Kan. 1354, Syl. ¶ 1 ("Conviction of involuntary manslaughter un der an imperfect selfdefense theory pursuant to K.S .A. 2017 Supp. 21- 5405(a)(4) does not require proof of a reckless or unintentional killing.").

The State's alternative argument is that the evidence demonstra ted James was an initial aggressor who cannot rely on either perfect or imperfec t self-defense. See K.S.A. 2018 Supp. 21-5226. According to the State, "overwhelming evide nce showed that defendant retrieved his gun, re turned to the party, followed Jo hnson and the victim down the stairs, and fired the fatal shot 37 seconds after entering the basement."

Although the State's version of t he facts is certainly plausibl e, even arguably probable, it was not the only ve rsion offered at trial. James t estified that he had his gun on his hip the entire night. Both he and Hughes testified that they came back to the party because she had promised to hel p clean up. It is undisputed—and corroborated by
surveillance video—that James fo llowed Johnson and McClennon ba ck into the party. But what happened du ring the next 37 seco nds is not so clear. O ne version of events has James surrounded by three men acing men, two of them ready to fi ght and the third possibly armed with a gun. The que stion of whether James was th e initial aggressor was a fact question for the jury to dec ide and the answer not so obvi ous that the applicability of imperfect self-defense was precluded.

The question remains whether an imperfect self-defense involunt ary manslaughter
instruction was otherw ise supported by the evidence admitted at trial and thus factually appropriate.33 Based on the trial evidence view ed in the light most favorable to James, we hold that it was. One of the key point s of contention at trial was w hether any of the three men James described as surrounding hi m had a gun. The State's posit ion was that no one other than James had such a weapon. If t he jury agreed with the State on that point, it is nevertheless possible the jury c ould have concluded, based on J ames' testimony and the testimony of others, that James was warranted in exercising som e level of self-defense but exceeded necessary force by firing his gun. He would have c ommitted a lawful act in
an unlawful manner.

It was error for the judge not to instruct the jury on imperfec t self-defense involuntary manslaughter.

Under the statutory harmless e rror standard, again, we "must be persuaded that there is no reasonable probab ility that the error will or did a ffect the outcome of the trial."
Ward , 292 Kan. at 565. On the facts of this case, we conclude there was no reasonable probability this instruction error affected the outcome.

Despite the theoretical possib ility that the ju ry could have re ached an involuntary manslaughter verdict based on im perfect self-defense, such a ve rdict was highly improbable. According to Gorrill's expert testimony and other w itnesses, the second shot that killed McClennon appears to have hit him as he was running away from James after the first shot. Shooting an una rmed person in retreat is antith etical to self-defense, perfect or imperfect.

S IMULTANEOUS J URY C ONSIDERATION OF L ESSER I NCLUDED C RIMES

James argues that the jury should have been instructed to consi der verdicts of premeditated murder and imperfect self-defense voluntary mansla ughter simultaneously.34 James concedes that he did not re quest the instruction and thus this court should
review the issue for clear error. T he State also argues that th e invited-error doctrine should preclude review by this court because James requested th e instruction he now challenges. In reply, James clari fies that he is not challengin g Instructions 5 and 6, which told the jury that "i f you do not agree that the defendant is g uilty of" the greater crime, "you should then consider the les ser included offense." Rather, he is challenging the judge's failure to affirmatively instruct the jury to consider premeditated first-degree murder and imperfect self-defen se voluntary manslaughter simult aneously.

Regardless of the merit of any preservation argument, James can not prevail on this issue. A majority of this court has held mere months ago that a "district court is not required to instruct a jury to co nsider a lesser included homic ide offense simultaneously with any greater homicide offense." State v. Sims , 308 Kan. 1488, Syl. ¶ 2, 431 P.3d 288 (2018), pet. for cert. filed April 29, 2019. Regardless of a ny disagreements a minority of the court might have had with that ruling, see 308 Kan. at 1507 -09 (Beier, J., concurring) ("sequential consideration does not ensure that a jury ever rea ches, much less effectively considers, [defense] theory"), Sims is now the controlling precedent.

The district judge did not err b y failing to instruct the jury to consider lesser included crimes simultaneously.

A DMISSION OF A UTOPSY P HOTOS
James next challenges Judge Tern es' admission of autopsy photos over repeated defense objections.

"'"'The standard of review for the admission of photographic evidence requires the appellate c ourt to first determine whethe r the35 photos are relevant. If a party argued that the photographs are overly repetitious, gruesome, or inflammatory, that is to say, prejudi cial, the
standard of review is abuse of discretion.'" State v. Rodriguez, 295 Kan. 1146, 1156, 289 P.3d 85 (2012) (quoting State v. Riojas, 288 Kan. 379, 387, 204 P.3d 578 [2009]). Abuse of discretion also is the stan dard of review when a party challenges evidence as cumulative.' State v. Hilt , 299 Kan. 176, 195, 322 P.3d 367 (2014).

"The burden of demonstrating abu se of discretion falls on the p arty asserting the
error. See State v. Rodriguez , 295 Kan. 1146, 1156, 289 P.3d 85 (2012). A district court abuses its discretion when the challenged action

"'"'(1) is arbitrary, fanciful, or unreasonable, i.e. , if no reasonable person would have taken the view adopted by the trial court; (2) is ba sed on an error of law, i.e. , if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e. , if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law o r the exercise of discretion is based.'"' 295 Kan. at 1156 (quoting State v. Robinson , 293 Kan. 1002, 1027-28, 270 P.3d 1183 [2012])." State v. Love , 305 Kan. 716, 721, 387 P.3d 820 (2017).

James argues that Judge Ternes und erstated the gruesomeness of the photos and that there was "not a compelling reason for admission, because the State had already admitted a video showing Mr. McC lennon's death in real time."

Photographic evidence is releva nt if "it has a reasonable tende ncy to prove a material fact." Love , 305 Kan. at 721.

"Autopsy photographs assisting a pathologist in explaining the cause of death are relevant and admissible, but those serving only to '"'inflame the minds of the members of the36 jury'"' are not. Rodriguez , 295 Kan. at 1157 (quoting State v. Riojas , 288 Kan. 379, 387, 204 P.3d 578 [2009]). In addition, a district court may abuse i ts discretion by admitting unduly repetitious photographs. 295 Kan. at 1157. 'The admissio n of photographs in a murder case has rarely been held to be an abuse of discretion.' 295 Kan. at 1157 (citing State v. Sappington , 285 Kan. 176, 195, 169 P.3d 1107 [2007]). ' "[B]ecause the Sta te has the burden to prove every element of the crime charged, photogr aphs used to prove the elements of the crime, includi ng the fact and manner of death a nd the violent nature of the crime, are relevant even i f the cause of death is not conte sted."' Hilt , 299 Kan. at 196;

see State v. Dupree , 304 Kan. 43, 64, 371 P.3d 862 (2016) ('As to materiality, photographs showing the jury the manner of death are material i n a murder trial.')." Love , 305 Kan. at 721-22.

The photos James challenges we re not repetitious. They allowed the pathologist to explain the path of the bullet that killed McClennon and show s kull fractures that resulted. Although the State int roduced video evi dence of McCle nnon stumbling and falling in the moment after being shot, it is impossible to tel l from the video alone what
caused McClennon to stumble and fall.

Judge Ternes did not abuse his discretion by admitting the phot os.

P ROSECUTORIAL E RROR

This court applies a two-step ana lysis to evaluate claims of pr osecutorial error.

"To determine if the prosecutor erred, 'the appellate court mus t decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial.' [ State v. ] Sherman , 305 Kan. [88, 109, 378 P.3d 1060 (2016)]. If the court finds error, the burde n falls on the State to demonstrate 'beyond a reasonable doubt that the error complaine d of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no37 reasonable possibility that the error contributed to the verdic t.' Sherman , 305 Kan. 88, Syl. ¶ 8." State v. Butler , 307 Kan. 831, 863, 416 P.3d 116 (2018).

During the State's closing, the prosecutor said, "I submit to y ou a justified man who is killing because he's so sca red does not r un down the roa d to Oklahoma in a stolen
vehicle."

James argues there was no eviden ce to support the prosecutor's description of Hughes' car as "stolen." The Sta te attempts to excuse the comme nt as being a reasonable
inference based on the evidence . According to the State, "While defendant is correct in noting that Hughes did not expre ssly testify that defendant sto le her car, Hughes's testimony, as well as that of def endant, indicated that defenda nt did not seek or obtain Hughes's permission to take the vehicle."

There are two basic elements of t heft: unauthorized control ov er the property and an intent to deprive the owner o f the property. See K.S.A. 2018 Supp. 21-5801 (theft, permanent deprivation); K.S.A. 2 018 Supp. 21-5803 (criminal dep rivation, temporary). Given the dating relationship of H ughes and James, it was at le ast presumptuous of the prosecutor to state, in essence, that James lacked implicit or explicit permission to use Hughes' car as if it were his o wn. Even assuming lack of author ization was established,
there was no evidence that James intended to permanently or tem porarily deprive Hughes of the car. The prosecutor's desc ription of the car as "stolen" was error because it was unsupported by evidence.

Moreover, as noted in James' bri ef, referencing an uncharged cr ime can be problematic because it encourages jurors to draw an inference o f a defendant's propensity
to commit crimes. Under K.S.A. 2 018 Supp. 60-455( a), evidence o f other crimes or civil wrongs is generally inadmissible. Even if James' exit in Hughes ' car might fall outside the38 prohibition in K.S.A. 2018 Supp. 60-455(a) because it occurred on the same "specified occasion" as the murder, it qualif ied as unnecessary and unwise as well as factually unsupported.

To avoid reversal of James' convi ctions for the prosecutor's er ror, the State must establish "beyond a reasonable do ubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the e rror contributed to the verdic t." State v. Sherman , 305 Kan. 88, Syl. ¶ 8, 378 P.3d 1060 (2016).

In light of the entire record, the error does not require rever sal. The remark was isolated. The point the prosecu tor sought to make—that a person "justified" in shooting
would not flee the state—was a valid argument, regardless of wh ether the car was stolen. Moreover, the jury heard testim ony that Hughes and James were i n a dating relationship
and that James had driven the car to Parrot-fa-Nalia. In other words, the prosecutor's characterization proba bly did more to damage her credibility th an it did to undermine the defense case. There was no dispute James simply left the scene in the same car he had
driven to it.

C ONSTITUTIONAL R IGHT TO P RESENCE

"An appellate argument on a 'de fendant's right to be present at every critical stage
of his or her criminal trial rais e[s] an issue of law over whic h this court exercises
unlimited review.' State v. Verser , 299 Kan. 776, 787, 326 P.3d 1046 (2014)." State v. Wright , 305 Kan. 1176, 1178, 390 P.3d 899 (2017) ( Wright I ).

Sylvester asked for, and received, trial con tinuances on two oc casions. The requests were made using the sa me generic form, and each contai ned a representation39 from Sylvester that he had "consul ted with" James and acknowled ged that the continuance would be charged to the defendant. The State does n ot dispute that James was not present when eithe r continuance was granted.

This court has held that a contin uance hearing is a critical st age at which a defendant is entitled to be present. See Wright I , 305 Kan. at 1178.

"'Under the plain language of [the speedy trial statute,] K.S.A . 22-3402, a continuance resulting from a defe ndant's request stays the runn ing of the statutory speedy trial period. When the request i s made by defense counsel, the request for continuance is attributable to the defendant unless the defendant timely voice s an objection. Because a defendant's disagreement matters in a statutory speedy trial an alysis, a defendant must have an opportunity to be presen t to express that disagreement. ' State v. Dupree , 304 Kan. 43, Syl. ¶ 2, 371 P.3d 862 (2016)." Wright I , 305 Kan. at 1178.

Thus James' right to be present at every critical stage was vio lated when
continuances were ordered outside his presence, unless he knowi ngly and voluntarily waived that right. See State v. Northern , 304 Kan. 860, 862, 375 P.3d 363 (2016). Because we see nothing in the reco rd to evidence such a waiver, we assume error on this point.

Assuming James' right was viola ted, the error may be declared h armless under the
constitutional standard "'where the party ben efitting from the error proves beyond a
reasonable doubt that the erro r complained of will not or did n ot affect the outcome of the trial in light of the entire record, i.e. , where there is no reasona ble possibility that the
error contributed to the verdict.'" Wright I , 305 Kan. at 1179 (quoting Ward , 292 Kan. 541, Syl. ¶ 6).40 In Wright I , this court remanded the case to the district court for factua l findings to
enable evaluation of the harmles sness of the deprivation of a d efendant's right to be present at a continuance hearing.

"Unfortunately, our ability to exa mine harmlessness here is sty mied by the lack of factual findings on the presence issue from the district cou rt. See State v. Hoge , 283 Kan. 219, 221-22, 150 P.3d 905 (2007) (meaningful appellate rev iew precluded when trial court's findings of fact, c onclusions of law inadequate t o disclose controlling facts, basis for court's findings); see also State v. Moncla , 269 Kan. 61, 65, 4 P.3d 618 (2000) (district judge must make factua l findings before appellate rev iew can occur). Without more information about the partie s' circumstances and the avenu es available to them and the judge on August 19, we cannot determine with any level of c onfidence whether Wright's absence was prejudicial. We are unable to assume that he would have changed the judge's mind about granting the continuance, making his tri al timely commenced; we
are unable to assume that the State would have obtained the con tinuance in spite of Wright's objection; we are unable to make any reliable predicti on of the strength of the State's case or the strength of Wright's defense depending on t he day the trial began. See
Verser , 299 Kan. at 789-90 (strength of prosecution's case one of the factors in harmlessness analysis after viola tion of defendant's right to b e present at all critical stages of trial).

"Ordinarily we would be inclined to lay the impotence of the re cord on appeal on this issue solely at the feet of the State, which must demonstr ate harmlessness once an
error is shown. See Ward , 292 Kan. 541, Syl. ¶ 6 (State, as party benefitting from erro r, bears burden of showing harmlessness). We do not do so automati cally here, because defense counsel and the district judge also share some responsi bility for the absence of findings in the record. Defense counsel put no emphasis on this issue at the hearing on the motion for new trial and did not object to the lack of find ings. See State v. Rodriguez , 302 Kan. 85, 91, 350 P.3d 1083 (2015) (party must object to ina dequate findings of fact to preserve issue for appeal). A nd the judge did not ensure tha t all necessary findings were made on each outstanding i ssue, which is inconsistent with the judge's duty under Rule 165 (2017 Kan. S. Ct. R. 214).41 "The one person who certainly s hares none of the responsibility for letting this issue drop is Wright himself. He asserted his right to be prese nt in the letter to Frieden, copied to the clerk of the court , who placed the letter in the court file. Wright filed the pro se motion to dismiss for violation of his right to speedy trial and, as part of it, again drew the court's attention to the violation of his right to be prese nt. He repeatedly voiced his disapproval of the continuance Fr ieden obtained in his absence. This chain of events is
reminiscent of those in State v. Raskie , 293 Kan. 906, 925-26, 269 P.3d 1268 (2012), and
State v. Seward , 289 Kan. 715, 217 P.3d 443 (2009), in which defendants took s teps to raise constitutional issues before district judges, but the jud ges' findings were inadequate for purposes of appellate review.

"'When an appellate court is pr esented with inadequate findings , the proper course taken depends on whether the issue was raised and can be resolved without
remand.' State v. Neighbors , 299 Kan. 234, 240, 328 P .3d 1081 (2014) (citing Raskie , 293 Kan. at 925-26 [remanding because district judge made inadequat e findings on defendant's cruel and unusual puni shment argument]). We are lef t with no choice but remand for findings here, because we cannot decide from the rec ord before us whether Wright's absence on August 19 had serious or minimal consequenc es." Wright I , 305
Kan. at 1179-80.

Citing Wright I , James asks for a remand for the district judge to make the fa ctual findings necessary for meaningful appellate review of his claim . We are unwilling to take this step.

This case differs from Wright because the record is not silent on James' contemporaneous attitude toward th e continuances obtained by Sy lvester. Although generic forms were used, and th ere is no evidence of a waiver o f James' right to be present, Sylvester represented to the court that he had consult ed with his client and at least implied that James agreed with his counsel 's course of ac tion.42 In addition, the record establishe s that James later acquiesced in other continuances that postponed his trial. On April 22, 2016, James agreed to his trial being moved from June to July to acco mmodate the court's calendar. At the same hearing, he told the court, "I'm not worried a bout the time." In September 2016, after Mank had finally been appointed , James again agreed to a continuance fro m September to November. James personally signe d off on the form requesting th e continuance. Unlike
the defendant in Wright , James' initial unequivocal dem and for no continuances charged against him collapsed in the face of other exigencies, principa lly the need for adequate time to prepare for new counsel.

Absent any consistent assertion of a violation of his speedy tr ial right or another sign of prejudice arising from Ja mes' absence from continuance hearings, any assumed
error would not be reversible. Cf. State v. Wright , 307 Kan. 449, 456- 58, 410 P.3d 893 (2018) ( Wright II ).

C UMULATIVE E RROR

We have identified multiple erro rs in James' trial, and he asse rts entitlement to
reversal of his convictions unde r the cumulative error doctrine

.

"'Cumulative error, considered co llectively, may be so great as to require reversal of a defendant's conviction. The test is whether the totality o f the circumstances substantially prejudiced the def endant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the e vidence against the defendant is overwhelming.'" State v. Carter , 305 Kan. 139, 166, 380 P.3d 189 (2016).

The errors in this case consist of three instructional errors—r efusal to instruct on reckless second-degre e murder, reckless invol untary manslaughte r, and imperfect selfdefense involuntary manslaught er—and one prosecutorial error. I n addition, we have43 assumed a violation of James' right to be present at all critic al stages because the record
contains no evidence that he know ingly and voluntarily waived t hat right.

The prosecutor's error during cl osing was a discrete error that in no way compounded the instructional errors. See Sims , 308 Kan. at 1507 ("Ta ken together, these errors in no way compounded one a nother; they were discrete."). Likewise, the assumed violation of James' right to be present at continuance hearings did not compromise his case in any way related to the o ther errors. The instructional errors, however, were interwoven, and all related to J ames' degree of culpability in the shooting.

Despite this commonality, we nevertheless conclude that the com bination of instruction errors did not dep rive James of a fair trial. Again , there were two unequivocally competing versions of the critical moments on the night McClennon was
killed. Statements of critical w itnesses for both sides had inc onsistencies. Yet only one of
the versions of events had Jame s as the aggressor. The jury mus t have accepted that
version when it convicted him of first-degree premeditated murd er, rejecting self-defense generally and passing up the opport unity to convict him of volu ntary manslaughter on a theory of imperfect s elf-defense. Cumulative error does not req uire reversal of James'
convictions.

C ONCLUSION

We affirm the judgment o f the district court.