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NOT DESIGNATED FOR PUBLICATION

No. 124,086

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

WADE A. DUNN,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed July 1, 2022. 

Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant. 

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before HILL, P.J., COBLE, J., and PATRICK D. MCANANY, S.J.

PER CURIAM: In this appeal Wade A. Dunn seeks a reversal of his conviction for 

attempted second-degree murder because the trial judge failed to instruct the jury on the 

lesser included crime of attempted voluntary manslaughter. In our review we conclude 

that instructing the jury on this lesser included crime would not have been appropriate

and, therefore, we affirm Dunn's conviction. 
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FACTUAL AND PROCEDURAL HISTORY

The events leading to Dunn's conviction occurred when the victim, Sarah

Chadwick, had put a laundry basket in her car. As she turned around to return to her 

house, she heard someone approach her from behind. She turned around and was 

confronted by a man—later identified as Dunn—standing there holding a knife. The man 

repeatedly stabbed Chadwick while she pleaded with him to stop and attempted to defend 

herself. Dunn said nothing, but he eventually stopped and ran away. Chadwick was 

transported to the hospital in critical condition but survived the attack after several 

surgeries. 

Through the use of various surveillance videos and the recovery of items of 

physical evidence, the police were able to identify Dunn as Chadwick's assailant. One of 

the surveillance videos from a neighbor across the street showed Dunn walking down the 

street and looking around before crouching behind Chadwick's car and then running 

towards Chadwick. Dunn was arrested and charged with attempted first-degree murder

and aggravated battery.

At trial Dunn's defense centered on his claims of voluntary intoxication and the 

lack of premeditation. To that end, he called Jason Waters to testify. Waters worked for 

the city supervising a street cleaning team. He testified that he saw Dunn walking in the 

street on the morning of the attack and Dunn seemed nervous or "on something [like] 

drugs."

Dunn testified in his own defense. He said he had been using methamphetamine 

the night before the attack and felt like he was still under the influence the following 

morning. He also had smoked two joints of K2, a synthetic marijuana product, that 

morning. He had a knife with him because he is "a natural paranoid" and "wanted some
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self-defense." He said he bought the knife at Wal-Mart the week before specifically for 

defensive purposes. 

Dunn said that on the morning of the attack he was walking around in an old 

neighborhood where an ex-girlfriend lived and that he smoked another K2 joint as he 

walked along. He recalled feeling "cool" and then suddenly his "body got real heavy, like

it felt like a weight on top of me." According to Dunn he could not remember seeing 

Chadwick or any of the attack, just that he suddenly found himself running away with a 

knife in his hand and covered in blood. Dunn said he never met Chadwick and had no 

plan to attack her. 

The neighbor's surveillance video showing Dunn crouching behind Chadwick's car 

and turning and running towards Chadwick was introduced into evidence, filling in for 

the jury events that occurred immediately before the attack. 

After Dunn was arrested, he was interviewed by a local television news reporter. 

He admitted at trial that he told the reporter that Chadwick "looked up and backed away"

before the attack, that he felt threatened by something Chadwick did that "set [him] off,"

and that he must have attacked her because of a perceived threat. But he testified that he 

did not remember whether that was an actual recollection of the events or the product of 

videos, incident reports, and news articles he had seen.

Without objection, the jury instructions included the following: 

Instruction No. 4:

"The defendant is charged in Count 1 with an attempt to commit Murder in the

First Degree. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:
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"1. That defendant performed an overt act toward the commission of Murder 

in the First Degree;

"2. That defendant did so with the intent to commit Murder in the First 

Degree;

"3. The Defendant failed to complete commission of Murder in the First

Degree;

"4. That this act occurred on or about the 23rd day of September 2019, in 

Sedgwick County, Kansas.

"An overt act necessarily must extend beyond mere preparations made by the 

accused and must sufficiently approach consummation of the offense to stand either as 

the first or subsequent step in a direct movement toward the completed offense. Mere

preparation is insufficient to constitute an overt act.

"The elements of the completed crime of Murder in the First Degree are as 

follows:

"1. The defendant intentionally killed Sarah Chadwick.

"2. The killing was done with premeditation.

"3. This act occurred on or about the 23rd day of September 2019, in

Sedgwick County, Kansas."

Instruction No. 5:

"The offense of Attempted First Degree Murder with which defendant is charged

includes the lesser offense of Attempted Second Degree Murder. You may find the 

defendant guilty of Attempted First Degree Murder, Attempted Second Degree Murder, 

or not guilty. When there is a reasonable doubt as to which of two or more 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 Presiding Juror should mark 

the appropriate verdict."
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Instruction No. 6:

"If you do not agree that the defendant is guilty of Attempted Murder in the First

Degree, you should then consider the lesser included offense of Attempted Murder in the 

Second Degree.

"To establish this charge, each of the following claims must be proved:

"1. That the defendant performed an overt act toward the commission of the crime of 

murder in the second degree.

"2. That the defendant did so with the intent to commit the crime of murder in the 

second degree.

"3. That the defendant failed to complete commission of the crime of murder in the 

second degree; and

"4. That this act occurred on or about the 23rd day of September 2019, in Sedgwick 

County, Kansas.

"The elements of the completed crime of Murder in the Second Degree are as follows:

"1. The defendant intentionally killed a human being.

"2. This act occurred on or about the 23rd day of September 2019, in Sedgwick

County, Kansas."

Instruction No. 10: 

"Evidence of voluntary intoxication may be considered in determining whether

such intoxication impaired the defendant's mental faculties to the extent that he was 

incapable of forming the necessary intent to form premeditation as set forth in instruction 

number 4 with regard to attempted first degree murder; or the necessary intent to kill as 

set forth in instruction 4 and 6 with regard to attempted first-degree murder and/or 

attempted second degree murder."

The jury ultimately found Dunn guilty of the lesser included offense of attempted 

second-degree intentional murder and guilty of aggravated battery. The court imposed 
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prison sentences of 247 months for attempted second-degree murder and a consecutive 43 

months for aggravated battery. 

ANALYSIS

Dunn appeals, contending that the trial court erred in not instructing the jury on 

the lesser included crime of attempted voluntary manslaughter as defined by K.S.A. 2019 

Supp. 21-5404(a)(2), otherwise known as imperfect self-defense voluntary manslaughter. 

Because Dunn did not request this instruction at trial, we apply the clear error 

standard. Under this standard Dunn must first show that failing to give this lesser 

included instruction was erroneous. Then, to show prejudicial error, Dunn must firmly 

convince us that the jury would have reached a different verdict if an instruction on the 

lesser included crime of attempted voluntary manslaughter had been given. See State v. 

Williams, 295 Kan. 506, 523-24, 286 P.3d 195 (2012). We only reach the prejudice 

element if the trial court erred in failing to give an instruction on attempted voluntary 

manslaughter.

When considering whether the trial court erred in failing to give an instruction on 

a lesser included crime, we consider whether the instruction was both factually and 

legally appropriate. In doing so we have unlimited review over the entire record. State v. 

Holley, 313 Kan. 249, 254, 485 P.3d 614 (2021).

An Instruction on Attempted Voluntary Manslaughter was Legally Appropriate

Voluntary manslaughter is a lesser degree of first-degree murder and therefore 

constitutes a lesser included offense. State v. Pulliam, 308 Kan. 1354, 1362, 430 P.3d 39 

(2018) (noting the "five degrees of homicide" include "[i]n descending magnitude, . . . 

capital murder, first-degree murder, second-degree murder, voluntary manslaughter, and 
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involuntary manslaughter"). Under K.S.A. 2021 Supp. 21-5301(a), an attempt is "any 

overt act toward the perpetration of a crime done by a person who intends to commit such 

crime but fails in the perpetration thereof or is prevented or intercepted in executing such 

crime." Having instructed the jury on the charged crime of attempted first-degree murder, 

an instruction on the lesser included crime of attempted voluntary manslaughter would 

have been legally appropriate. See State v. Gentry, 310 Kan. 715, 733, 449 P.3d 429 

(2019).

An Instruction on Attempted Voluntary Manslaughter was not Factually Appropriate

The next step in the analysis is to determine whether an attempted voluntary 

manslaughter instruction would have been factually appropriate. Here, a jury instruction 

on the lesser included crime of attempted voluntary manslaughter would have been

factually appropriate if, viewing the evidence in the light favoring Dunn, there was 

sufficient evidence for a rational fact-finder to find that Dunn was guilty of this lesser 

included charge rather than attempted first-degree murder or attempted second-degree

intentional murder. See Holley, 313 Kan. at 255; K.S.A. 2021 Supp. 22-3414(3).

As noted earlier, voluntary manslaughter as defined by K.S.A. 2021 Supp. 21-

5404(a)(2) is known as imperfect self-defense voluntary manslaughter. Kansas law 

defines imperfect self-defense voluntary manslaughter as "knowingly killing a human 

being . . . upon an unreasonable but honest belief that circumstances existed that justified 

use of deadly force under K.S.A. 2021 Supp. 21-5222 . . . ." (Emphasis added.) K.S.A. 

2021 Supp. 21-5404(a)(2).

There was no evidence that Dunn had an honest belief that Chadwick's conduct 

justified his attack on her as an act of self-defense. According to Dunn, he experienced a 

"blackout" and could not remember the moments just before or during the attack. He only 
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recalled walking in the neighborhood and using drugs before the attack and then suddenly 

realized he was running, holding a knife, and his shirt was covered in blood. 

Dunn recalled being interviewed by a news reporter after his arrest. He did not 

remember telling the reporter that he believed Chadwick was a threat to him and that her 

actions set him off and he had to attack her. According to Dunn, he "must have seen

[Chadwick] as a threat, . . . but I don't remember thinking that." The only actions 

attributed to Chadwick in the interview apparently involved her looking up and backing 

away. He did not deny making this statement in the news interview, but he did not 

remember doing so. His only explanation was that his statements to the reporter were 

probably the product of his review of police reports and a video. Dunn having essentially 

undermined the statements in the reporter's interview, the record is devoid of any 

evidence which, viewed in the light favoring Dunn, supports the notion that at the time of 

the attack Dunn had an honest belief that circumstances existed that justified use of 

deadly force against Chadwick.

In State v. Roeder, 300 Kan. 901, Syl. ¶ 5, 336 P.3d 831 (2014), our Supreme 

Court stated that "[a]n unreasonable but honest belief that circumstances existed that 

justified deadly force will not support a claim of imperfect [self-defense] unless the 

circumstances, if reasonably believed, would have supported a claim of perfect defenseof-others under [the prior version of K.S.A. 2021 Supp. 21-5222]." See also State v. Seba, 

305 Kan. 185, 208-09, 380 P.3d 209 (2016) (citing Roeder and observing that 

"subjectively feeling fear is not sufficient to justify self-defense").

By his own admission, Dunn could only speculate about his thoughts before and 

during the attack. The only evidence about what occurred leading up to and during the 

attack came from the neighbor's video showing Dunn crouching behind Chadwick's car 

and then running towards Chadwick and Chadwick's testimony that Dunn ran up behind 

her and began stabbing her after she placed the laundry basket in the car. The record is 
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devoid of evidence, even when viewed in the light favoring Dunn, that Chadwick's 

actions caused him to believe that he needed to exercise deadly force to defend himself. 

There was no evidence that—in the words of the statute—Dunn had an honest belief that 

circumstances existed that justified use of deadly force. Therefore, giving a jury 

instruction on attempted voluntary manslaughter was not factually appropriate, and the 

district court did not err in failing to give it.

Because we conclude that the trial court did not err in failing to give an instruction 

on attempted voluntary manslaughter, we need not reach the element of prejudice under 

the clear error standard. 

Affirmed.