STATE OF KANSAS v. MARK HOLLEY III

- Criminal defense attorney represented Mark Holley III with challenging his first-degree felony murder and child endangerment convictions on direct appeal.

Although Holley's convictions stem from four separate events, for today's

purposes we need only discuss the robbery of Timothy Albin and the murder of D'Shaun

Smith. Albin contacted Holley on Facebook asking about a cell phone Holley posted for

sale. Holley agreed to sell the cell phone to Albin for $80, and the two arranged to meet

at Holley's house. When Albin arrived, Holley was sitting on the porch. Holley then got

up, walked toward Albin's car, and sat in the front passenger seat. Albin's children—then

ages one and two—sat in car seats behind Holley and Albin.

Holley gave Albin the cell phone, but Albin soon gave the phone back to Holley

complaining that it was not the right model and had not been charged. As Albin tried to

hand the phone back, Holley pulled out a firearm, told Albin he "knew what was going

on," and demanded Albin's wallet, phone, and money. Albin requested he be able to keep

his driver's license, but the man told Albin he had "five seconds to get out of here before I

gas your shit." Albin handed over his belongings and drove off quickly to call the police

at a nearby gas station.

About a month later, Holley shot and killed D'Shaun Smith. That day, Holley

contacted Smith through Facebook Messenger to buy marijuana. Holley and Smith

agreed to meet up, and Holley told Smith to not bring guns because the two were meeting

at Holley's mother's daycare facility.

Emari Reed, Smith's girlfriend, drove Smith to meet Holley. As Reed and Smith

pulled up to Holley's mother's daycare, Holley got into the back-passenger seat behind

Smith. Smith gave Holley the marijuana, but Holley gave it back to Smith and said he

was waiting on his girlfriend to come out from the duplex. A couple of minutes later,

Reed claims Holley said, "This is a robbery." 4

At trial, Reed testified that Holley fired a shot at Smith after this statement. Smith

fell back onto Reed and she could see blood coming from his chest and mouth. Reed tried

to drive away but could not get her car moving. Unsuccessful, she stepped out of the car,

screaming, and saw Smith reach for a gun under the passenger seat and stand up out of

the car. Reed testified she believed Smith fired a shot back at Holley but admitted she did

not see him fire or hear a gunshot. Reed stated her ears were still ringing and her vision

was blurry. Smith collapsed back into the car seconds after standing and was

unresponsive. By the time Reed managed to call for help, Smith had died.

At trial, Holley's version of events was quite different. He admitted to shooting

Smith but claimed it was "[i]n complete self-defense." Holley claimed that while Smith

and Reed initially came to Holley's to sell Holley marijuana, Holley informed them he no

longer wished to buy marijuana when he got into the car. Instead, Holley offered to pay

them $20 for a ride to Holley's girlfriend's house. Smith and Reed agreed to give him a

ride. The car never left Holley's house, however, because when Holley pulled out the

$200-$300 cash he was carrying then to pay $20 for the ride, Smith tried to grab the wad

of cash from Holley's hands. Smith only managed to grab Holley's phone.

As Holley opened the door to get out of the back seat, Holley saw Smith start to

reach under his seat. And when Holley closed the car door, Holley saw Smith crack open

the passenger car door and point a gun out of the open passenger window. Holley, unable

to run due to an old ankle injury, tried to smack the gun out of Smith's hand. Holley

claimed that as he hit Smith's hand, the gun fired. Holley then recalled Smith trying to

squeeze the trigger again, but nothing happened because the gun appeared to be jammed.

When Smith tried to rack the slide back, Holley pulled his gun out of his pocket and fired

a shot aiming at Smith's right arm to slow him down so he could run away. 5

Investigators recovered Smith's Jimenez .380 pistol, two cell phones, a shell casing

from a Smith & Wesson .380 Bodyguard semi-automatic pistol, 4 grams of raw

marijuana, and a digital scale from the scene around Reed's car. The Jimenez pistol was

jammed and a live Hornady .380 auto caliber cartridge was stuck inside the barrel. The

cartridge's primer was punched, but the round did not fire. The magazine contained four

rounds of Hornady .380 auto ammunition. Investigators also lifted six fingerprints from

Reed's vehicle. Two fingerprints found on the exterior rear passenger door matched

Holley's left index and middle fingerprints. Later, investigators determined one of the cell

phones recovered belonged to Holley.

Using media accounts linked to Holley's cell phone and tracking dogs,

investigators tracked Holley to his sister's residence. After surveilling the residence for

some time, police arrested Holley as he tried to drive away in a black Lexus. Holley had a

stolen Smith & Wesson pistol in his possession when he was arrested.

After interviewing witnesses, investigators learned that Smith may have

successfully fired a shot. Investigators searched the scene and found a bullet strike on a

home north of where Reed's car was parked. While the bullet strike was visible in the

painted brick of the home, there was no debris around the home to suggest it was a fresh

hit. Investigators were also unable to locate a shell casing associated with this bullet.

An autopsy revealed Smith's cause of death was a gunshot wound to the trunk. The

autopsy also showed this fatal round was fired at "near contact" range. Testing showed

the Smith & Wesson pistol recovered during Holley's arrest matched the projectile

recovered from Smith's autopsy.

The jury convicted Holley guilty as charged. 6

ANALYSIS

Holley challenges his first-degree murder and child endangerment convictions.

First, Holley argues the district court committed reversible error in refusing a self-defense

instruction. We agree. A self-defense instruction was both legally and factually

appropriate in this case. And because whether Holley used self-defense boils down to a

credibility question, we cannot be sure that the court's failure to instruct the jury on selfdefense did not affect the outcome of this trial.

Second, we affirm Holley's child endangerment convictions. Viewing the evidence

in the light most favorable to the State, the evidence is sufficient to support Holley's

convictions. We find that a rational fact-finder could have found beyond a reasonable

doubt that Holley knowingly placed Albin's children in danger. The State was not

required to prove a probability or likelihood of harm. Probability or likelihood of harm is

one of multiple factors a jury may consider.

The district court erred in refusing to give a self-defense instruction.

At trial, Holley requested a self-defense instruction. The district court agreed the

facts supported a self-defense instruction but held that the instruction was not legally

appropriate because Holley was charged with a forcible felony. The State admits that a

self-defense theory was both factually and legally appropriate but argues the error is

harmless. Thus, the main issue comes down to whether the district court's error is

reversible.

We agree with Holley and the State that the district court erred in refusing to give

a self-defense instruction because the instruction was both legally and factually

appropriate. We find the district court's error reversible because whether a rational factfinder would find that Holley used self-defense boils down to a credibility determination 7

between witnesses. Without the jury making this credibility determination, we cannot be

sure that the court's failure to instruct the jury on self-defense did not affect the outcome

of this trial.

We review jury instruction issues in multiple steps:

"When analyzing jury instruction issues, we follow a three-step process:

'(1) determining whether the appellate court can or should review the issue, i.e., whether

there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal;

(2) considering the merits of the claim to determine whether error occurred below; and

(3) assessing whether the error requires reversal, i.e., whether the error can be deemed

harmless.'" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

It is uncontested that Holley requested a self-defense instruction and orally argued

for this instruction. Thus, Holley properly preserved the issue for appeal. Whether a party

preserves a jury instruction issue affects this court's reversibility inquiry at the third step.

McLinn, 307 Kan. at 317. Because Holley properly preserved these issues for appeal, any

error is reversible only if this court determines that the error was not harmless. See, e.g.,

State v. Barrett, 309 Kan. 1029, 1037, 442 P.3d 492 (2019).

As noted, the state has conceded error and simply argues harmlessness. But before

moving to a harmlessness analysis, we take a moment to confirm the parties' conclusion

that the district court erred in refusing to give the self-defense instruction. To do so, we

must consider whether the instructions were legally and factually appropriate, using an

unlimited standard of review of the entire record. McLinn, 307 Kan. at 318.8

A self-defense instruction was legally appropriate.

The district court erred in claiming a self-defense instruction was not legally

appropriate here. The court held that K.S.A. 2020 Supp. 21-5226(a) precluded a selfdefense instruction because it clearly states that "self-defense is not available to a person

who is attempting to commit, committing, or escaping from the commission of a forcible

felony."

The district court, however, did not adhere to our decision in State v. Barlett, 308

Kan. 78, 418 P.3d 1253 (2018). In Barlett, we disapproved our previous "general rule

stated in Bell and Kirkpatrick—that a defendant charged with committing a forcible

felony is not permitted to assert a theory of self-defense." 308 Kan. at 84. Instead, we

held that "[t]he better rule is the one we adopt today: a defendant may not assert selfdefense if that defendant is already otherwise committing a forcible felony when he or

she commits a separate act of violence." 308 Kan. at 84.

Both parties agree that Barlett controls here making a self-defense instruction in

Holley's case legally appropriate. Considering the evidence in the light most favorable to

Holley, a reasonable fact-finder could have concluded that Holley was not otherwise

committing a forcible felony when he committed the act of violence here—shooting

Smith. If Holley only drew his gun in self-defense after Smith had fired or tried to fire at

Holley, Holley did not otherwise commit aggravated robbery. Thus, under Barlett, Holley

was not legally barred from claiming self-defense. But even if the self-defense instruction

were legally appropriate, Holley must still show that the defense was also factually

appropriate to find error.9

A self-defense instruction was factually appropriate.

The district court, Holley, and the State all agreed that a self-defense instruction

would have been factually appropriate. In other words, the parties agree that, viewing the

evidence in the light most favorable to Holley, the evidence was sufficient for a rational

fact-finder to find in Holley's favor. See State v. Plummer, 295 Kan. 156, 163, 283 P.3d

202 (2012) (determining whether an instruction is factually appropriate requires the court

to "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").

We agree. Kansas law justifies the use of deadly force only when a person

reasonably believes it is necessary to prevent imminent death or great bodily harm. State

v. Qualls, 309 Kan. 553, 557, 439 P.3d 301 (2019). To determine whether deadly force is

justifiable, we use a two part test:

"'The first is subjective and requires a showing that [the defendant] sincerely and honestly

believed it was necessary to kill to defend herself or others. The second prong is an

objective standard and requires a showing that a reasonable person in [the defendant's]

circumstances would have perceived the use of deadly force in self-defense as necessary.

[Citation omitted.]'" 309 Kan. at 557 (quoting State v. McCullough, 293 Kan. 970, 975,

270 P.3d 1142 [2012]).

A defendant's testimony, even if contradicted by all other witnesses and physical

evidence, satisfies the defendant's burden as long as a rational fact-finder would

reasonably conclude the defense applies. State v. Haygood, 308 Kan. 1387, 1405-06, 430

P.3d 11 (2018).

Viewing the evidence in the light most favorable to Holley, Holley's testimony

provides sufficient evidence that Holley subjectively and objectively believed the use of

deadly force was necessary. According to Holley, he believed he needed to use self-10

defense after Smith tried to shoot Holley. Holley testified that Smith tried to grab

Holley's $200-$300 in cash when Holley tried to pay Smith $20 for a ride. As Holley got

out of the car, he saw Smith pull out a gun from underneath the seat and point it at

Holley. Holley was unable to run but hit Smith's hand to avoid being shot by the first

bullet Smith fired. As Holley tried to get away, he saw Smith attempt to fire at Holley

again but the gun was jammed. Holley believed Smith would eventually fire and believed

he needed to fire a shot at Smith in self-defense. So Holley shot at Smith's right arm to

slow him down.

Physical evidence also supported Holley's testimony. Investigators determined that

Smith's Jimenez pistol was jammed and a live Hornady .380 auto caliber cartridge was

stuck inside the barrel. Investigators also observed a bullet strike on a nearby house north

of where Reed's car was parked. Although the State's evidence may have rebutted this

narrative, a defendant's testimony that he or she believed deadly force was necessary is

enough to satisfy the subjective prong if a reasonable fact-finder would reasonably

conclude the defense applies. See Haygood, 308 Kan. at 1405-06. Holley's testimony thus

established Holley subjectively believed use of deadly force was necessary.

Holley's testimony also satisfies the objective standard required to show a

justifiable use of deadly force. Holley's theory shows a circumstance where a reasonable

person would have perceived the use of deadly force in self-defense as necessary. A

reasonable person who witnessed someone trying to fire a shot at them twice and could

not safely flee the scene would most likely feel the need to fire a shot in self-defense.

Thus, a reasonable fact-finder could have found Holley's use of deadly force to be

justifiable. 11

The district court's error was not harmless.

The parties disagree on which harmless error test analysis applies here. Holley

argues our constitutional harmless error test applies because the court's refusal to give the

self-defense instruction violated Holley's right to present a defense. See State v. Andrew,

301 Kan. 36, 47, 340 P.3d 476 (2014) (holding that when an instructional error impacts a

constitutional right, this court assesses "whether the error was harmless under the federal

constitutional harmless error standard, i.e., whether there was 'no reasonable possibility'

that the error contributed to the verdict"). The State argues that we must apply our

nonconstitutional harmless error test usually applied to jury instruction claims. See, e.g.,

State v. Keyes, 312 Kan. 103, 110, 472 P.3d 78 (2020) (holding that for a jury instruction

to be harmless, the State must show there is no reasonable probability the error affected

the trial's outcome in light of the entire record).

Here, however, we need not determine which harmlessness test applies. Under

either theory, the State has failed to prove the error was harmless. The jury was provided

with competing narratives. According to Reed, Holley tried to rob Smith at gunpoint and

fired the initial shot. But according to Holley, Smith tried to rob Holley by grabbing his

$200-$300 cash and fired the initial shot, followed by an attempted shot that was only

prevented by Smith's gun jamming.

The physical evidence supported Holley's claim that both Smith and Holley fired

or tried to fire shots. Smith's Jimenez pistol was jammed and a live Hornady .380 auto

caliber cartridge was stuck inside the barrel. Holley admits to shooting Smith and ballistic

testing showed the Smith & Wesson Bodyguard Holley possessed at the time of his arrest

matched the projectile recovered from Smith's autopsy. 12

The physical evidence, however, does not establish who fired or tried to fire their

gun first. The sequence of events hinges on testimony from Reed and Holley. Thus,

whether Holley used self-defense boils down to a credibility question. Without the jury

making this credibility determination, we cannot be sure that the court's failure to instruct

the jury on self-defense did not affect the outcome of this trial. See Keyes, 312 Kan. at

110. As a result, we reverse Holley's first-degree murder conviction.

The State provided sufficient evidence to support Holley's child endangerment

convictions.

Next, Holley claims the State failed to provide sufficient evidence of child

endangerment. Holley claims this offense required the State to prove Holley committed

the offense "knowingly." He also claims the State failed to prove there was a reasonable

probability that harm would occur.

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

of review is whether, after reviewing all the evidence in a light most favorable to the

prosecution, the appellate court is convinced a rational factfinder could have found the

defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,

resolve evidentiary conflicts, or make witness credibility determinations.'" State v.

Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

Thus, we must determine whether the evidence, viewed in the light most favorable

to the State, is enough to convince a rational fact-finder that Holley endangered Albin's

children beyond a reasonable doubt.

Under K.S.A. 2020 Supp. 21-5601(a):

"Endangering a child is knowingly and unreasonably causing or permitting a

child under the age of 18 years to be placed in a situation in which the child's life, body

or health may be endangered."13

Holley first claims the State failed to prove Holley knowingly placed Albin's

children in a situation where their life, body, or health may be endangered by failing to

establish Holley knew the children were in the car. Under Kansas law:

"A person acts 'knowingly,' or 'with knowledge,' with respect to the nature of

such person's conduct or to circumstances surrounding such person's conduct when such

person is aware of the nature of such person's conduct or that the circumstances exist. A

person acts 'knowingly,' or 'with knowledge,' with respect to a result of such person's

conduct when such person is aware that such person's conduct is reasonably certain to

cause the result. All crimes defined in this code in which the mental culpability

requirement is expressed as 'knowingly,' 'known,' or 'with knowledge' are general intent

crimes." K.S.A. 2020 Supp. 21-5202(i).

Viewing the evidence in the light most favorable to the State, however, we find the

State's evidence sufficient to persuade a rational fact-finder that Holley knew he put

Albin's children in danger. The State's evidence showed that Holley watched Albin's car

pull up to the house and Holley walked toward the car to get into the passenger seat. The

children were strapped into their car seats the entire time. Albin testified that he washed

his small, compact car that morning so the windows were clear. Investigators managed to

lift Holley's fingerprint from the clean vehicle. Although Holley denied knowing the

children were in the back seat at trial, the State's circumstantial evidence suggests

otherwise. See State v. Thach, 305 Kan. 72, 84, 378 P.3d 522 (2016) (holding that the

State may use circumstantial evidence to prove a defendant's culpable mental state).

Based on the children being in plain sight and Holley having a chance to see the children

from the outside of the car as well as when he was inside the car, we find that a

reasonable fact-finder could find that Holley knowingly endangered Albin's children. 14

Next, Holley claims the State's evidence could not establish that there was a

reasonable probability or likelihood that harm would occur to the children. We take this

opportunity to clarify our caselaw on child endangerment and hold that a reasonable

probability or likelihood of harm occurring is not required to prove child endangerment.

Instead, probability or likelihood of harm is one of several factors for the jury to consider

in child endangerment cases.

Holley relies on our holding in State v. Fisher, 230 Kan. 192, 631 P.2d 239

(1981), to argue a showing of reasonable probability or likelihood of harm is needed to

prove child endangerment. The Fisher court noted that "[t]he wording of the [child

endangerment] statute is broad, but the purpose is likewise broad; to prevent people from

placing children in situations where their lives and bodies are obviously in imminent

peril." 230 Kan. at 199 (analyzing an earlier version of the child endangerment statute

that also required that the child's "life, body or health may be injured or endangered").

The Fisher court also noted, however, that the statute's use of the word "may" "means

something more than a faint or remote possibility; it means that there is a reasonable

probability, a likelihood that harm to the child will result." 230 Kan. at 195.

In State v. Cummings, 297 Kan. 716, 731, 305 P.3d 556 (2013), however, we made

it clear that likelihood of harm was not a requirement:

"[W]hile the likelihood that harm will occur is a relevant consideration, it is not the sole

consideration the jury must weigh in reaching its decision. Instead, the jury should be

instructed on three considerations: (1) the gravity of the threatened harm, (2) the

legislature's or regulatory body's independent assessment that the conduct is inherently

perilous, and (3) the likelihood that harm to the child will result or that the child will be

placed in imminent peril."15

Today, we stand by Cummings and hold that proof of a likelihood of harm is not

required to prove child endangerment. Rather, likelihood of harm is a consideration the

jury must weigh in reaching its decision along with the gravity of the threatened harm

and the Legislature's assessment of whether the conduct is inherently perilous.

With those considerations in mind, we find the State's evidence sufficient to

convince a rational fact-finder that Holley placed Albin's children in a situation in which

their life, body, or health may have been endangered. The State's evidence showed that

Holley pulled his gun out in the passenger seat of Albin's small, compact car. Holley

pointed and threatened to shoot Albin in close proximity to the children. Even though the

gun was pointed at Albin rather than the children, there was still a threatened harm that a

bullet could ricochet or debris could have come across the children in such a confined

area.

Further, according to the Legislature, Holley's conduct was inherently dangerous.

In Kansas, both robbery and aggravated robbery are inherently dangerous felonies. See

K.S.A. 2020 Supp. 21-5402(c)(1)(C), (D). When Holley demanded Albin hand over his

wallet and threatened him with a gun, he committed aggravated robbery. K.S.A. 2020

Supp. 21-5420(b)(1). Thus, Holley involved the children in an inherently dangerous

felony. See State v. Daniels, 278 Kan. 53, 72-73, 91 P.3d 1147 (2004) (holding that

evidence of defendant planning to involve a minor in aiding and abetting in an aggravated

robbery was enough evidence to uphold a child endangerment conviction). Because we

find the State's evidence sufficient to support Holley's child endangerment convictions,

we affirm his child endangerment convictions. 16

In conclusion, we reverse Holley's first-degree murder conviction and affirm his

child endangerment convictions. Because we reverse Holley's first-degree murder

conviction, we vacate his entire sentence and remand Holley's case to the district court

for further proceedings. Given this, it is not necessary to address Holley's remaining

claims.

Convictions affirmed in part and reversed in part, sentence vacated, and case

remanded to the district court with directions