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NOT DESIGNATED FOR PUBLICATION

No. 123,152

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

HUGO RODRIGUEZ,

Appellant.

MEMORANDUM OPINION

Appeal from Seward District Court; LINDA P. GILMORE, judge. Opinion filed December 30, 

2022. Affirmed in part, reversed in part, sentence vacated, and remanded with directions.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee. 

Before CLINE, P.J., ATCHESON and COBLE, JJ.

PER CURIAM: In the midst of a routine traffic stop, Defendant Hugo Rodriguez 

took off running. With two police officers in pursuit, Rodriguez drew a handgun, fired 

several shots, and then surrendered as they closed in. A jury sitting in Seward County 

District Court convicted Rodriguez of attempted heat-of-passion voluntary manslaughter 

and two counts of aggravated assault of a law enforcement officer, among other felony 

charges. Rodriguez disputes the sufficiency of the trial evidence to support those three

convictions. We agree as to the attempted voluntary manslaughter and disagree on the 

aggravated assaults. We, therefore, affirm the aggravated assault convictions, reverse the 
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conviction for attempted voluntary manslaughter, vacate that sentence, and remand to the 

district court with directions to resentence Rodriguez. 

FACTUAL AND PROCEDURAL HISTORY

The basic facts of the criminal episode are straightforward. About 7:30 p.m. on 

July 2, 2015, Liberal Police Officer Russell Almes made a traffic stop of a sedan in which 

Rodriguez was a passenger. The stated reason for the stop was the failure of the driver to 

wear a seatbelt. See K.S.A. 2021 Supp. 8-2503 (law enforcement officer may stop motor 

vehicle if occupants of front seats are not wearing seatbelts). Because the driver and 

Rodriguez seemed unusually nervous, Almes concluded he should search the car and 

called for another officer to assist him. Liberal Police Sergeant Mark West responded. 

Almes was getting ready to do a pat-down search of Rodriguez for officer safety when 

Rodriguez bolted and began to run away. Almes gave chase on foot, yelling at Rodriguez

to stop and suggesting he would face charges for obstruction. West got in Almes' marked 

police SUV and drove along a route to get ahead of Rodriguez and intercept him in flight.

Rodriguez stopped in a vacant lot, drew a handgun from his belt area, and fired

several shots at West as he sat in the driver's seat of the SUV. West reported to the 

dispatcher that shots had been fired and sought to take cover. During the trial, West 

testified that although he did not see Rodriguez point or discharge a firearm, he heard the 

shots. Almes trailed Rodriguez by about 25 yards and saw what was unfolding. He drew 

his handgun and called the dispatcher for additional officers. At trial, Almes testified he 

was immediately fearful that Rodriguez might next shoot at him. Apparently seeing 

Almes with his handgun drawn, Rodriguez dropped his handgun and laid down on the 

ground. After the officers handcuffed Rodriguez, West found two bullet holes in the 

police SUV.
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The State charged Rodriguez with five felonies: The attempted first-degree 

murder of West; two counts of aggravated assault, one for each officer; discharge of a 

weapon into an occupied motor vehicle; and criminal possession of a firearm by a 

convicted felon. The jury heard evidence in the case in May 2016 and convicted 

Rodriguez of attempted heat-of-passion voluntary manslaughter, as a lesser included 

offense of the attempted murder charge, and of each of the other charges. The district 

court later sentenced Rodriguez to a controlling prison term of 130 months and 

postrelease supervision for 24 months, reflecting the standard guidelines punishment for 

the attempted voluntary manslaughter conviction based on Rodriguez' criminal history. 

The district court imposed lesser concurrent sentences on the other felony convictions.

This court granted Rodriguez' motion to pursue a late appeal.

LEGAL ANALYSIS

On appeal, Rodriguez contends the State produced insufficient evidence at trial to 

support the guilty verdicts on the attempted heat-of-passion voluntary manslaughter of 

West and the aggravated assaults of both West and Almes. He has not challenged the 

other convictions, and we do not consider them further.

In reviewing a sufficiency challenge, we construe the trial evidence in a light most 

favorable to the party prevailing in the district court, here the State, and in support of the 

jury's verdict. An appellate court will neither reweigh the evidence generally nor make 

credibility determinations specifically. State v. Jenkins, 308 Kan. 545, Syl. ¶ 1, 422 P.3d 

72 (2018); State v. Butler, 307 Kan. 831, 844-45, 416 P.3d 116 (2018); State v. Pham, 

281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is whether rational 

jurors could have found the defendant guilty beyond a reasonable doubt. Butler, 307 Kan. 

at 844-45; State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014).
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As criminalized in K.S.A. 2021 Supp. 21-5404(a)(1), voluntary manslaughter is 

the knowing killing of a person done "[u]pon a sudden quarrel or in the heat of passion." 

An attempt, of course, entails a failed effort to commit a crime. K.S.A. 2021 Supp. 21-

5301(a). The Kansas Supreme Court has recognized attempted heat-of-passion voluntary 

manslaughter to be a valid crime. State v. Gutierrez, 285 Kan. 332, 344, 172 P.3d 18 

(2007). So attempted voluntary manslaughter is a legally proper lesser included offense 

of attempted intentional first-degree murder, and a jury should be instructed on it if the 

trial evidence, viewed favorably to the defendant, could support a guilty verdict. See 

State v. Berkstresser, 316 Kan. ___, Syl. ¶ 2, 2022 WL 17408873 (No. 122,557, filed 

December 2, 2002). But a defendant is not precluded from challenging the sufficiency of 

the evidence to support a guilty verdict on a lesser included offense merely because a 

district court has given the jury an instruction on that offense.

Here, the relevant jury instruction identified heat of passion rather than a sudden 

quarrel as the factual element the jury should consider on the attempted voluntary 

manslaughter charge. And Rodriguez focuses his attention on the evidence pertaining to 

that element. This court has discussed what constitutes sufficient "heat of passion" to 

mitigate an intentional murder to voluntary manslaughter:

"Heat of passion requires an emotional stimulus of such magnitude to prompt an ordinary 

person to kill spontaneously and, thus, without premeditation or specific intent. State v. 

Bailey, 256 Kan. 872, 886, 889 P.2d 738 (1995) (The stimulus must cause '"an ordinary 

man to lose control of his actions and his reason."'); State v. McClanahan, 254 Kan. 104, 

114, 865 P.2d 1021 (1993) (heat of passion entails '"any intense or vehement emotional 

excitement of the kind prompting violent and aggressive action"'). The furor effectively 

mitigates the calculation and evil-mindedness required for murder with a hot-blooded 

loss of reason and control—a mental state the law finds less blameworthy. But the 

requisite stimulus must be sudden and extreme. Tribulations, annoyances, and vexations 

don't clear that formidable barrier. The mental disintegration required for heat of passion 

goes beyond mere upset or anger. The measure is an objective one, considering what 

would unhinge 'an ordinary person.' State v. Follin, 263 Kan. 28, Syl. ¶ 2, 947 P.2d 8 
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(1997). So a defendant's particular susceptibility to even extreme emotional distress in 

some circumstances would not be a consideration in gauging the appropriateness of an 

instruction on voluntary manslaughter. 263 Kan. at 33-34." State v. Paulson, No. 

108,795, 2015 WL 6444314, at *4 (Kan. App. 2015) (unpublished opinion).

Although Paulson and the authority it cites looked at the predecessor statute to K.S.A. 

2021 Supp. 21-5404, "heat of passion" has long been an element of voluntary 

manslaughter, so the discussion remains relevant. In considering "heat of passion" under 

the current statute, the Kansas Supreme Court has reiterated the extreme nature of the 

required upheaval "'as "any intense or vehement emotional excitement of the kind 

prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, 

fright, or terror," based "on impulse without reflection."'" State v. Campbell, 308 Kan. 

763, 775, 423 P.3d 539 (2018) (quoting State v. Hayes, 299 Kan. 861, 864, 327 P.3d 414 

[2014]).

In short, heat-of-passion voluntary manslaughter is a form of homicide in which 

some extraordinary provocation that would cause a reasonable person to lose control and 

all sense of reason immediately prompts the perpetrator to kill spontaneously and without 

reflection. The provocation and the response effectively mitigate premeditation and an 

intent to kill, replacing that cold-bloodedness with a hot-blooded passion. The same holds

true for an attempt. There must be both an adequate provocation and a near instant violent 

outburst in response to it. 

Given those principles, Rodriguez' insufficiency argument has merit. Even 

examining the evidence in the best light for the State, there was neither a legally adequate 

provocation nor an immediate uncontrolled reaction. Almes initiated and was carrying 

out what, to all accounts, amounted to a routine traffic stop and incipient pat-down search 

of an occupant of the car. Although some people might consider the seat-belt violation to 

be a picayune reason for a traffic stop, it was lawful. And while a traffic stop may be 

annoying and possibly nerve wracking, it would not induce in a reasonable person the 
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sort of spontaneous homicidal frenzy marking heat-of-passion voluntary manslaughter.

The same holds for a pat-down search. Those searches are necessarily intrusive by design

and may seem obtrusive or embarrassing. But they are not the stuff spurring voluntary 

manslaughters. Even a legally questionable traffic stop or pat-down carried out in an

otherwise reasonable manner would not be the sort of conduct amounting to sufficient

provocation.

A contrary rule would be extraordinary: A person charged with killing a law 

enforcement officer during a routine traffic stop would be entitled to a jury instruction on 

heat-of-passion voluntary manslaughter virtually automatically. We are confident that is

not the law. For that reason alone, Rodriguez' conviction for attempted voluntary 

manslaughter fails.

If that were not enough, Rodriguez did not evince the sort of unhinged loss of 

control and reason required to support either a heat-of-passion voluntary manslaughter or 

an attempt. To the contrary, his actions were reasoned and deliberate however unwise and 

unwarranted they may have been. As the officers prepared to search Rodriguez, he ran, 

presumably expecting they would find his handgun and suspecting, if not knowing, he 

would be in trouble when they did. Only when the officers pursued him—and seemed to 

be closing in—did he draw the weapon and fire. And when Almes responded by 

unholstering his handgun, Rodriguez quickly and demonstrably surrendered. Nothing in 

that course of conduct displayed or even hinted at an emotional meltdown, let alone one 

that immediately devolved into homicidal violence. That is another basis on which the 

State's evidence fails.

When a conviction lacks the necessary evidentiary support in the trial record, we 

reverse the conviction, vacate the sentence, and enter a judgment of acquittal. See State v. 

Baumgarner, 59 Kan. App. 2d 330, 331, 481 P.3d 170 (2021). We do so here. Because 
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this is a case with multiple convictions, we must remand to the district court for 

resentencing consistent with K.S.A. 2021 Supp. 21-6819(b)(5).

We now turn to Rodriguez' challenge to the aggravated assault of a law 

enforcement officer convictions under K.S.A. 2021 Supp. 21-5412(d)(1). As we have 

indicated, Rodriguez does not fare as well with this part of his appeal. To convict, the 

State had to prove Rodriguez knowingly put Almes and West "in reasonable 

apprehension of immediate bodily harm" with a deadly weapon while they were 

performing their regular duties and were in uniform or otherwise identified as law 

enforcement officers. K.S.A. 2021 Supp. 21-5412. Rodriguez focuses this argument on 

whether the evidence established the officers were in reasonable apprehension of the 

requisite harm. In doing so, he wisely, if tacitly, acknowledges he used a deadly weapon 

and Almes and West were in uniform performing police duties. 

Rodriguez submits Almes could not have been in reasonable apprehension because 

he saw that the only shots were directed toward West. But Almes testified that he 

believed he could be Rodriguez' next target—a fair conclusion prompting a reasonable 

apprehension of bodily harm given his proximity to Rodriguez and the effective range of 

a handgun. See Estate of Randolph v. City of Wichita, 57 Kan. App. 2d 686, 717-18, 459 

P.3d 802 (2020) (in discussing civil assault, court recognizes brandishing of handgun 

creates "a zone of threat or danger," given weapon's range, and persons within zone may 

experience reasonable apprehension of bodily harm). Rodriguez secondarily suggests he 

could not have knowingly placed Almes in apprehension because he didn't appreciate

where the officer was. But the evidence shows Almes trailed fairly closely behind 

Rodriguez and was yelling commands at him. A jury properly could find Rodriguez knew 

Almes was in the immediate vicinity when he drew his handgun and began shooting.

As to West, Rodriguez submits the officer could not have been in reasonable 

apprehension because he did not see Rodriguez point the handgun at the police SUV and 
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then fire in that direction. But West heard the shots and could reasonably conclude 

Rodriguez had a firearm and was using it to effect his escape, so he and Almes were

likely targets. Indeed, West wasted no time in reporting shots had been fired and seeking

protective cover—actions fully consistent with an apprehension of immediate harm.

Without belaboring this point, the trial evidence sufficiently supported the jury's 

guilty verdicts for aggravated assault of a law enforcement officer as to both Almes and 

West. We affirm those convictions.

In summary, then, we set aside Rodriguez' conviction for attempted voluntary 

manslaughter, vacate the sentence, and enter a judgment of acquittal on that charge. 

Vacating the sentence on the primary crime of conviction will have some effect on the 

other sentences. We affirm each of the other convictions and remand to the district court 

with directions to resentence Rodriguez on them.

Affirmed in part, reversed in part, sentence vacated, and remanded for 

resentencing.