NOT DESIGNATED FOR PUBLICATION. No. 113,869 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellee,

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1 NOT DESIGNATED FOR PUBLICATION No. 113,869 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. STEPHEN ALAN MACOMBER, Appellant. MEMORANDUM OPINION Affirmed. Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed June 23, Jonathan B. Phelps, of Phelps-Chartered, of Topeka, for appellant, and Stephen A. Macomber, appellant pro se. Elizabeth A. Billinger, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee. Before BRUNS, P.J., HILL and SCHROEDER, JJ. Per Curiam: The self-defense law of Kansas states that a person who uses force that is justified by self-defense is immune from prosecution. Stephen Alan Macomber shot and killed a man in Topeka in He now appeals the involuntary manslaughter conviction arising from his second trial. He raises several jury instruction issues, claims insufficient evidence, and maintains that because his actions were justified by selfdefense, he is immune from prosecution. For the reasons listed below, we conclude that Macomber is not entitled to a new trial and we affirm his conviction. 1

2 Seated in a car, Macomber shoots and kills Ryan Lofton. In June 2010, Risa Lofton and Ryan Lofton were married but not living together. While she was at Ryan's house, the two began to argue because she told Ryan that she was going to leave with Macomber. Ryan did not want her to go. Risa sent Macomber a text message asking him to come pick her up. Macomber arrived and parked in the driveway behind another car. He stayed inside his car. While Risa gathered up her belongings, Ryan went outside and spoke with Macomber through the passenger side window of Macomber's car. Ryan headed back toward the house, then turned around and walked back toward the driver's side window of the car. Risa placed her things in Macomber's car and got into the passenger seat. By this time, Ryan was at the driver's side window. Macomber had a gun. Ryan was angry but was unarmed. There was some kind of a struggle inside the car. Macomber shot and killed Ryan. He immediately drove away. At his first trial, the State had charged Macomber with first-degree murder and criminal possession of a firearm. The jury found Macomber guilty of intentional seconddegree murder and criminal possession of a firearm. A panel of this court overturned these convictions in State v. Macomber, No. 108,301, 2014 WL (Kan. App. 2014) (unpublished opinion). Then, in March 2015, Macomber was retried on the charge of intentional seconddegree murder. At this trial, Risa testified that as Ryan was walking toward the driver's side of the car, Macomber reached under the seat and pulled out a gun that was covered by a Crown Royal bag. Risa was in the passenger seat of the car at this time. She saw 2

3 Macomber "tracking" or following Ryan with the gun as Ryan walked in front of the car to the driver's side. In other words, the gun was pointed at Ryan the whole time as Ryan moved. The driver's side window was down "a couple of inches." Risa tried to pull Macomber's arm away so that the gun was not pointed at Ryan. Unsuccessful, she got out of the car to push Ryan out of the way. But as soon as she shut the car door, she heard a "pop." While all of this was going on, Cassandra Taylor, Ryan's friend, was inside her car, which was parked in Ryan's driveway directly in front of Macomber's car. Taylor saw Risa put her bags in Macomber's car while Risa and Ryan were arguing. Taylor testified that Ryan had his head in Macomber's car and there was a "struggle" between Ryan and either Risa or Macomber. Ryan was standing outside the car. She remembered Ryan being on the passenger side of the car facing away from the car and then she saw a "flash" like a gun going off. Ryan threw up his arms and said he was shot. Joshua Kenoly was seated in the passenger seat of Taylor's car. Kenoly was also Ryan's friend. Kenoly saw Risa get into Macomber's car. Ryan was trying to get Risa to stay. Ryan told Risa that he did not want her to leave. Ryan and Risa's argument was "heated." Ryan was aggressive. Ryan went around to the driver's side of Macomber's car. Ryan started talking to Macomber. Ryan and Macomber got into a "little tussle." Kenoly saw Ryan reach into the car and saw pushing and pulling motions. Ryan said, "[W]hat are you going to do, shoot me[?]" Ryan was less than a foot away from Macomber's car, standing over the driver's window, but not touching the car. At this point, Kenoly turned away and went onto the porch of the house. Then he heard a gunshot. 3

4 Hedy Saville testified that Macomber came to her house on the same day and had a gun with him. Macomber told her, "I killed a man in Topeka." Macomber told Saville that the man said he was going to shoot Macomber so Macomber shot the man before the man could shoot him. KBI Special Agent Mark Malick spoke with Macomber. Macomber indicated that he had killed someone in Topeka with a.357 Highway Patrolman revolver. Macomber said there was talk back and forth and the man was "acting like a fool." He knew the man did not have a gun. The man said something like, "[Y]ou want to shoot me... [?]" Macomber indicated that the man was "talking big" or "talking shit" even though the man did not have a gun, and that is when Macomber decided to "fire off a round." Macomber stated that Ryan kept "talking shit" and telling Macomber that he should be afraid of him, so Macomber shot him. Macomber also said that the man tried to grab Macomber's gun and then Macomber shot him. Macomber indicated that the man said he was going to shoot Macomber and Macomber did not mean for any of this to happen. A few days later, KBI Special Agent Steve Bundy interviewed Macomber. A recording of the interview was played at trial. Macomber stated that Ryan came to his car and "start[ed] some shit with me." He said that Ryan "threaten[ed] to shoot me." Macomber did not know whether Ryan had a gun but assumed he had something to shoot. Ryan started to grab Macomber's gun. Macomber said his gun was in a bag and he did not know which way it was aiming. Macomber wanted to go; he did not want a confrontation. Macomber "fired a round off" to get Ryan off his car and it hit him. Ryan's hands were not on the gun or bag when Macomber fired the shot, but they had been. Ryan kept moving back and forth from the car. Macomber said he brought a gun because 4

5 there had been five shootings in that neighborhood over the weekend. So when Ryan talked about shooting him, Macomber took it seriously. While in jail, Macomber made three telephone calls that were recorded and then played for the jury. In the first, Macomber stated that he "killed a guy." He "fired off one round into the air and it hit a guy." During the second, Macomber stated he had a gun because he knew he was in a bad neighborhood. As soon as Macomber pulled up to the house, Ryan came out to his car and started questioning him about whether Macomber was sleeping with Risa. Ryan threatened to shoot Macomber. Macomber told Ryan he had a gun in his Crown Royal bag. Ryan came over to the driver's side of the car and pulled on his door. Ryan started to grab the gun. Macomber fired a round off just to let Ryan know it was a real gun, and it hit him and killed him. During the third call, Macomber said he knew the gun did not work properly because he had practiced shooting with it before. Zachary Carr, a supervisor in the firearm and tool mark section of the KBI laboratory, testified that he examined the gun. It was functioning properly when he received it. But he damaged it while testing it. Macomber called a firearm expert, John Cayton, to testify. Cayton testified that he noticed the gun had a light trigger pull. Cayton testified that he opened the gun and examined it. He found that the coils on the rebound slide spring had been cut, which can change the trigger pull. But the trigger pull was still within normal range. The gun was not going to fire unless someone pulled the trigger. The firearm had also been altered with some sort of abrasive tool that "could" cause a problem with the way it functioned. This was not the damage that KBI expert Carr did to the firearm. Dr. Donald Pojman performed Ryan's autopsy. Ryan died from a single gunshot wound to the chest. The bullet entered on the left side of Ryan's back beneath the 5

6 shoulder blade and traveled predominately from left to right. Ryan was shot from an indeterminate range of fire. Dr. Pojman testified that Ryan had methamphetamine in his system at a level that would affect the person's behavior. Over Macomber's objection, the court instructed the jury on three lesser included offenses of second-degree intentional murder: second-degree unintentional murder, voluntary manslaughter, and involuntary manslaughter. The jury found Macomber guilty of the lesser included offense of involuntary manslaughter. Among the jury instruction errors that Macomber claims is that the trial court should not have given a lesser included offense instruction to the jury for the elements of involuntary manslaughter an unintentional killing that is a result of reckless conduct. Macomber maintains that the evidence only described an intentional shooting and not a reckless shooting. He contends that there was no evidence of unintentional conduct. To us he argues not only was it erroneous for the judge to give the instruction, but that we should overturn the conviction because there was insufficient evidence to prove him guilty of the crime. Because the two issues are so intertwined, we will address both at this point. Briefly put, in our view, the instruction was proper and there is sufficient evidence in the record for us to uphold his conviction. We turn first to the instruction. The court told the jury about the elements of involuntary manslaughter: "Instruction Number 17: If you do not agree that the defendant is guilty of voluntary manslaughter, you should then consider the lesser included offense of involuntary manslaughter. "To establish this charge, each of the following claims must be proved: 1. That the defendant unintentionally killed Ryan Keith Lofton; 2. That it was done recklessly; and 6

7 3. That this act occurred on or about the 7th day of June, 2010, in Shawnee County, Kansas. "Reckless conduct means conduct done under circumstances that show a realization of the imminence of danger to the person of another in a conscious and unjustifiable disregard of that danger. The terms 'gross negligence', 'culpable negligence', 'wanton negligence', and 'wantonness' are included within 'reckless'." Macomber objected, arguing that the evidence supported only an intentional shooting. This objection preserved the issue for appeal. The defense argued there was no evidence that the shooting was unintentional or reckless. To the contrary, the State argued that there was evidence of reckless conduct in Macomber's statements that he fired off a round into the air and hit Ryan, that he was not sure which way the gun was pointed, and that he did not intend to kill Ryan. Pressing the point, the State argued it was extremely reckless to have a gun pointed in the general direction of an individual and to fire the gun. The trial court overruled Macomber's objection, deciding the jury could find that Macomber did not intend to kill Ryan and that Macomber's conduct was reckless. The responsibility of instructing the jury about the law rests with the judge. The trial court shall instruct the jury on lesser included offenses where there is some evidence that would reasonably justify a conviction of the lesser included offense. K.S.A (3); State v. Armstrong, 299 Kan. 405, 432, 324 P.3d 1052 (2014). This duty to instruct applies even if the evidence is weak, inconclusive, and consists solely of the defendant's testimony. State v. Maestas, 298 Kan. 765, Syl. 6, 316 P.3d 724 (2014); State v. Martinez, 288 Kan. 443, 453, 204 P.3d 601 (2009). When these lesser included offense instructions are challenged on appeal, we note that when an offense includes a lesser included crime, instructing on the lesser included crime is erroneous only if the instruction would have not been factually appropriate. After 7

8 all, K.S.A (3) states if there is some evidence then the judge shall instruct. That is the default requirement of the law. In turn, when evaluating whether a lesser included instruction is factually appropriate, we review all the evidence, viewed in the light most favorable to the prosecution. If we are convinced that a rational factfinder could have found the defendant guilty of the lesser crime, then giving the lesser included instruction stands. State v. Fisher, 304 Kan. 242, 258, 373 P.3d 781 (2016). Here, Macomber told Agent Malick that he decided to "fire off a round" and did not mean for any of this to happen. Macomber said Ryan was "talking shit" and Macomber knew Ryan did not have a gun. Macomber told Agent Bundy that his gun was in a bag and he did not know which way it was aiming. He wanted to go; he did not want a confrontation. He "fired a round off" to get Ryan off his car and it hit him. In a jail call, Macomber stated that he "fired off one round into the air and it hit a guy." In another call, Macomber stated that he fired a round off just to let Ryan know it was a real gun, and it hit him and killed him. Macomber was consistent on this point whether he was talking to law enforcement officers or making personal calls from jail. Taylor and Kenoly, seated in the car immediately in front of Macomber's car, could not see precisely what was happening in the car, but their testimony tended to support this version of events. A jury could have reasonably found that Macomber discharged his firearm without intending to kill Ryan and that discharging his firearm with Ryan at his car door showed a conscious and unjustified disregard for the danger to Ryan in doing so. Where there is conflicting evidence, it is the jury's job to weigh the evidence. That is what it did here. Macomber also said at one point that he knew the gun did not work properly. Yet Macomber fired the gun in Ryan's general direction. 8

9 Three cases cited by Macomber for support deserve comment. They are: State v. Jones, 267 Kan. 627, 633, 984 P.2d 132 (1999); State v. Bailey, 263 Kan. 685, 691, 952 P.2d 1289 (1998); and State v. Pierce, 260 Kan. 859, 867, 927 P.2d 929 (1996). In Jones, the court held that the defendant's action of using his hands to grip his victim's neck hard enough to break pliable bone and cartilage structures, and long enough to fatally deprive her of oxygen, was intentional. The court stated that Jones' self-serving statement that he did not intend to kill the victim was insufficient to support a reckless second-degree murder instruction. 267 Kan. at 633. Then, in Bailey, 263 Kan. at 691, and Pierce, 260 Kan. at 867, the court stated that a defendant's actions in pointing a gun at someone and pulling the trigger are intentional rather than reckless even if the defendant did not intend to kill the victim. These cases relied upon by Macomber have been called into question by a more recent holding of our Supreme Court in State v. Deal, 293 Kan. 872, 882, 269 P.3d 1282 (2012), where the court emphasized that the focus should be whether the killing was intentional or unintentional, notwithstanding the contrary language in Jones, Bailey, and Pierce. The court stated that a deliberate and voluntary blow can result in an unintentional but reckless killing if the specific intent to kill is not proven. Deal, 293 Kan. at 882. The court held the evidence was sufficient to establish unintentional, reckless second-degree murder where the evidence showed that: the defendant went to the victim's house; the victim tried to hit the defendant with a tire iron; the defendant wrestled the tire iron away; and the defendant, without an intent to kill, struck the victim's shoulder, neck, and head area. 293 Kan. 872, Syl. 2. Using similar reasoning, the court has also stated that a reckless involuntary manslaughter instruction is appropriate where the defendant intentionally shot the victim, but the jury may have reasonably believed that the defendant did not intend to kill the victim. See State v. McCullough, 293 Kan. 970, , 270 P.3d 1142 (2012). 9

10 Not all of the cases Macomber cites support his argument. In State v. Robinson, 261 Kan. 865, 881, 934 P.2d 38 (1997), the court held the evidence that the defendant swung a golf club at the victim with great force, intending to hit the victim, was sufficient to show recklessness. The defendant testified that he did not intend to kill the victim, and the State did not contest the testimony; thus, the jury could not have found him guilty of an intentional killing. 261 Kan. at 883. In State v. Jones, 27 Kan. App. 2d 910, 915, 8 P.3d 1282 (2000), the court found there was evidence of recklessness when witnesses testified the defendant fired the gun randomly and without aiming, and the defendant testified he closed his eyes and aimed over the heads of the crowd to scare them off. The instruction on unintentional second-degree murder was required. 27 Kan. App. 2d at 915. Macomber's statements are evidence that the jury could use to infer that he did not intend to kill Ryan. Macomber stated that he just fired a round off into the air and it happened to hit Ryan. Macomber was relatively consistent on this point, though some of his statements were inconsistent. We know that Macomber went to Ryan's house to pick up Risa. He did not get out of his car. Ryan was angry and stood outside of Macomber's car. Ryan did not want Risa to leave with Macomber. There was some kind of struggle. Macomber fired one round. Given these facts, whether Macomber had an intent to kill was a jury question. A jury could have reasonably believed that Macomber did not intend to kill Ryan. The jury here evidently believed that Macomber did not intend to kill Ryan because it found him guilty of involuntary manslaughter, not intentional second-degree murder or voluntary manslaughter. We hold the court properly instructed the jury on this point and that there was sufficient evidence to support the jury's verdict of guilty. 10

11 INSTRUCTIONS Macomber argues the trial court did not instruct his jury properly. He contends the judge failed to tell the jury: about the legal presumption of reasonableness an accused is entitled to when deadly force is used against someone who is unlawfully entering an occupied vehicle of the accused; the definition of the phrase, "use of force"; it could infer the accused's intent from the acts of the accused; or that involuntary manslaughter can also be committed by doing a lawful act in an unlawful manner. He concludes by arguing that these instruction errors, when accumulated, denied him a fair trial. We will address the arguments in the same order. We deem the final two abandoned for want of cited authority and argument. Presumption of reasonableness The legislature, when it adopted the stand-your-ground style of self-defense, enacted 12 statutes. See K.S.A Supp to K.S.A Supp The statutes are complicated and can be confusing. If you think of the person claiming the right to self-defense as "such person" when you read the law, it becomes more understandable. The general policy is expressed in K.S.A Supp : "(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other's imminent use of unlawful force. 11

12 "(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person. "(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person." But the self-defense laws do not end with that policy. There is a presumption that can arise. That presumption is noted in K.S.A Supp (a). When dealing with self-defense "a person is presumed to have a reasonable belief that deadly force is necessary to prevent imminent death or great bodily harm to such person or another person if: "(1) The person against whom the force is used, at the time the force is used: (A) Is unlawfully or forcefully entering, or has unlawfully or forcefully entered, and is present within, the dwelling, place of work or occupied vehicle of the person using force; or (B) has removed or is attempting to remove another person against such other person's will from the dwelling, place of work or occupied vehicle of the person using force; and "(2) the person using force knows or has reason to believe that any of the conditions set forth in paragraph (1) is occurring or has occurred." This is the presumption that Macomber argues he was entitled to, and the court erroneously omitted it from the jury instructions. Here is what the trial court told the jury: "Instruction Number 12: The defendant claims his conduct was permitted as self-defense. "The defendant is permitted to use against another person physical force that is likely to cause death or great bodily harm only when and to the extent that it appears to 12

13 the defendant and the defendant reasonably believes 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 the defendant and the existence of facts that would persuade a reasonable person to that belief. "When use of force is permitted as self-defense, there is no requirement to retreat." The instruction is obviously based on PIK Crim. 4th The court here did not give the optional presumption instruction. Using terms pertinent to the facts of this case, the optional language found in PIK Crim. 4th says that the jury must presume that a person had a reasonable belief that use of physical force likely to cause death or great bodily harm was necessary to prevent imminent death or great bodily harm to himself or herself if it finds the following: At the time the force likely to cause death or great bodily harm was used, the individual against whom the force was used was unlawfully or forcefully entering and was presently within the occupied vehicle of the person using the force; and the person using the force knew or had reason to believe the individual against whom the force was used was unlawfully or forcefully entering and was presently within the occupied vehicle of the person using the force. The "notes on use" of PIK Crim. 4th state that the presumption portion of the instruction "should be given only in a case involving the use of deadly force and only if there is evidence sufficient to find that the case is one described in subparagraph (1)." PIK Crim. 4th Further, we note that the presumption is rebuttable. In fact, part of the presumption instruction reads: "This presumption may be overcome if you are persuaded beyond a reasonable doubt that the person did not reasonably believe that use of force likely to 13

14 cause death or great bodily harm was necessary to prevent imminent death or great bodily harm to [himself]." PIK Crim. 4th In Macomber's view, the court was required to give the presumption instruction because Ryan was forcefully reaching into Macomber's car, and Ryan was not letting Macomber leave. The court denied his request, ruling that when the force was used, there was no evidence that Ryan was in the occupied car or that Ryan was attempting to remove Macomber from the car. In other words, the facts did not call for the use of the optional language. On appeal, Macomber contends that there was plenty of evidence supporting his theory that Ryan was either unlawfully or forcefully attempting to enter, or had in fact entered Macomber's car and was inside the car when Macomber used deadly force. A quick review of some points of law is helpful here. A criminal defendant is generally entitled to an instruction on the law applicable to his or her theory of defense if the instruction would be both legally and factually appropriate. The latter requires that there is sufficient evidence for a rational factfinder to find for the defendant on that theory. If the defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant. State v. Dupree, 304 Kan. 377, 397, 373 P.3d 811 (2016). The question here is, was this addition to the self-defense instruction factually appropriate? Again, application of the statute, by its plain language, is limited. The presumption found in K.S.A Supp (a)(1)(A) was applicable if, at the time the force was used, Ryan either: was unlawfully or forcefully entering Macomber's car, or 14

15 had unlawfully or forcefully entered, and was present within, Macomber's car. A review of the record verifies the trial court's holding. Taylor testified that Ryan had his head in Macomber's car and there was a struggle inside the car between Ryan and either Risa or Macomber. At the time of the struggle, Ryan had not physically entered the car he was standing outside the car. At this time, Taylor saw a "flash" like a gun going off. Taylor believed that the struggle was about Risa getting out of the car. Kenoly, the passenger in Taylor's car, testified Ryan was at the passenger's side door arguing with Risa. Ryan was trying to get Risa to stay. He was just talking to her. He did not want her to leave with Macomber. But Risa did not get out of the car. Ryan then went to the driver's side door. Ryan was standing by the driver's side of the car when Ryan and Macomber got into a "little tussle." Ryan said, "[W]hat are you going to do, shoot me[?]" Ryan was standing not even a foot from the driver's side of the car. He was not touching the car. Kenoly did not see Ryan at the time of the gunshot. He believed Ryan was still standing by the driver's side of the car at that time. Kenoly had told an investigator, Don Ballard, that Ryan reached into Macomber's car and he saw "pulling and pushing motions" between Ryan and Macomber. Kenoly was looking away from the car, towards the house, when he heard the gunshot. Macomber told Agent Bundy that Ryan started to grab Macomber's gun. Ryan's hands were not on the gun or bag when Macomber fired the shot, but they had been. Macomber told Agent Malick, among other things, that Ryan tried to grab Macomber's gun and then Macomber shot him. Dr. Pojman testified that the gun's range of fire was indeterminate. He did not find evidence of a close range of fire such as stippling or soot, either because the gun was 15

16 fired further than 24 to 36 inches away or because there was more clothing between Ryan and the gun that he was not aware of. Dr. Pojman was not provided information that the gun was covered or inside another object. John Cayton testified that he observed damage to the Crown Royal bag consistent with a gun being fired through it. Dr. Pojman testified that Ryan's wound was closer to the side than to the flat of his back. Also relevant is Risa's testimony that the driver's side window was down "a couple of inches." Kenoly testified he believed the driver's side window was down and Ryan and Macomber tussled through the open window. In one of his telephone calls from jail, Macomber stated that Ryan came over to the driver's side of the car and pulled on his door. In making its ruling, the trial court found that "[t]he simple fact of the matter is... that when the force was used in this case... that Ryan Lofton wasn't presently within the occupied vehicle." Indeed, there is no evidence in the record that indicates Ryan ever got into the car. But was he trying to get into the car when he was shot? Construing the facts in a light favorable to Macomber, as our caselaw requires, it was possible that some part of Ryan, i.e. his arm, was inside the car when Macomber shot him. But it was entirely unclear from the testimony. From a recent case, we know that Ryan's entire body need not have been inside the car to be entitled to the instruction. In State v. Hardy, 305 Kan. 1001, 390 P.3d 30 (2017), the court stated the presumption of reasonableness was factually implicated where the victim reached into the passenger side of a convertible with its top down and struck the defendant two or three times in the face. "Since Flores himself testified multiple times that Hardy shot him during the attack, the district court could reasonably conclude that 16

17 Hardy fired the shot while Flores' arm was still present and Hardy was still under attack in the vehicle." 305 Kan. at While we acknowledge that it is easier for an attacker to reach into a convertible with its top down than a sedan, such as the one driven by Macomber, we think this is a close question. But we question if it is reversible. Would it have made a difference here, given how the jury was instructed? We know that the statute says the presumption is rebuttable. In Pennington v. State, No. 108,236, 2013 WL , at *3-4 (Kan. App. 2013) (unpublished opinion), a panel of this court concluded that the presumption does not substantively change the law of self-defense: "Under the new language, jurors must presume deadly force was appropriate in the stated factual circumstances until they are persuaded otherwise beyond a reasonable doubt by the evidence admitted at trial. That determination reflects a subset of the decision-making jurors would go through in evaluating the law of self-defense and reasonable doubt in any event. That is, jurors must presume a defendant to be not guilty and may not conclude otherwise unless they are persuaded beyond a reasonable doubt. The same holds true in a self-defense case. The State has the obligation to prove the elements of the crime beyond a reasonable doubt notwithstanding the evidence of selfdefense. Jurors, therefore, may not find a defendant guilty unless they are persuaded beyond a reasonable doubt he or she did not act in self-defense. To do so, they must be persuaded beyond a reasonable doubt overcoming the presumption of innocence that the defendant did not hold an objectively reasonable belief that force was necessary to defend himself or herself or a third person. That conclusion is the same one described in the new presumption language in PIK Crim. 4th " Here, the trial court instructed the jury that the State must prove Macomber guilty beyond a reasonable doubt. It was further instructed: 17

18 "Instruction Number 7: The defendant raises use of force in defense of a person as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State's burden of proof does not shift to the defendant." Thus, under the instructions actually given to the jury here, in order to find Macomber guilty, the jury had to find beyond a reasonable doubt that: it did not appear to Macomber or Macomber did not reasonably believe deadly force was necessary to prevent death or great bodily harm to himself from Ryan's imminent use of unlawful force. We cannot see how the trial court's failure to give this addition to the instruction is reversible. Use of force definition For his next instruction complaint, Macomber contends that the trial court's failure to define "use of force" for the jury is reversible error. Without explaining why, he tells us the jury may have been misled. He insists that without giving the jury the statutory definitions, "[it] didn't have enough information to conclude that Ryan Lofton's actions could be legally defined as unlawful." We are not so persuaded. This came up at trial. K.S.A Supp (a) lists two definitions: "(1) 'Use of force' means any or all of the following directed at or upon another person or thing: (A) Words or actions that reasonably convey the threat of force, including threats to cause death or great bodily harm to a person; (B) the presentation or 18

19 display of the means of force; or (C) the application of physical force, including by a weapon or through the actions of another. "(2) 'Use of deadly force' means the application of any physical force described in paragraph (1) which is likely to cause death or great bodily harm to a person. Any threat to cause death or great bodily harm, including, but not limited to, by the display or production of a weapon, shall not constitute use of deadly force, so long as the actor's purpose is limited to creating an apprehension that the actor will, if necessary, use deadly force in defense of such actor or another to [e]ffect a lawful arrest." Macomber asked the court to give these definitions to the jury. The court denied the request by reasoning: "The use of force and the use of deadly force in really goes to the permissible actions of an individual that's been charged with a crime in which use of force or use of deadly force is used. "In this case, the jury has to determine whether the defendant believed and whether a reasonable person believed that the defendant's actions were appropriate against Mr. Lofton's use of unlawful force. Unlawful force is not narrowed. It's based on the circumstances of the case and sometimes I think in this case is probably broader than what the definition would allow. So I'm not going to further define use of force or use of unlawful force by Mr. Lofton in this matter." Macomber used deadly force. To acquit, the jury had to find that it appeared to Macomber and Macomber reasonably believed such force was necessary to prevent death or great bodily harm from Ryan's imminent use of "unlawful" force. The law stating the self-defense policy, thus, provides a context. See K.S.A Supp A trial court need not define every term in the jury instructions. The meaning of common terms are often derived from their context. Obviously here, that would mean the use of such force that a reasonable person could believe would cause death or great bodily harm. Our Supreme Court has stated not every term needs to be defined for a jury: 19

20 "[A] trial court 'need not define every word or phrase in the instructions. It is only when the instructions as a whole would mislead the jury, or cause them to speculate, that additional terms should be defined.' [Citation omitted.] We further stated that '[a] term which is widely used and which is readily comprehensible need not have a defining instruction.' [Citation omitted.]" State v. Armstrong, 299 Kan. 405, 440, 324 P.3d 1052 (2014). In Armstrong, the appellant argued that the trial court erred by not providing a definition of "sudden quarrel" or "unreasonable but honest belief." The court held that the concept of sudden quarrel was incorporated into the definition of "heat of passion" and, therefore, a separate definition was not needed. The court further held that the phrase "upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person" used widely understood words that did not require a definition. 299 Kan. at 440. Here, "unlawful force" is widely understood and does not require a definition. Moreover, it was placed into context by the self-defense instruction. We find no error here. Two unsupported instruction error claims Macomber's appellate counsel adopted two arguments that Macomber made in his pro se brief. He claims two jury instruction errors; first, not giving an "inference of intent" instruction, and then failing to include the language "during the commission of a lawful act in an unlawful manner" in the elements instruction for involuntary manslaughter. Neither were requested at trial. Neither Macomber nor his counsel offer us any supporting authority, and both arguments are clearly added to the briefs incidentally. An issue not briefed by the appellant is deemed waived or abandoned. State v. Williams, 303 Kan. 750, 758, 368 P.3d 20

21 1065 (2016). A point raised incidentally in a brief and not argued therein is also deemed abandoned. State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015). Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158 (2015). We deem these two claims of instruction error to be abandoned. Finally in this section, we also reject Macomber's claim that cumulative instruction errors call for reversal. We have found only one error and it was harmless. There are no other errors to accumulate. SELF-DEFENSE IMMUNITY When the legislature adopted the stand-your-ground style of self-defense, it made another clear statement of public policy. A person who is justified in using force under the law of self-defense, even deadly force, is immune from prosecution and not liable in a civil action for the use of such force. See K.S.A Supp With no further elaboration, the legislature left it to the courts to develop the procedures necessary to carry out this policy. Our Kansas Supreme Court has recently set out the procedure for enforcing this policy in Hardy, 305 Kan. at When this issue arises, the State must provide evidence of a negative. The burden is on the State to show probable cause that the defendant's use of deadly force was not statutorily justified. The Hardy court stated, "[U]pon a motion for immunity pursuant to K.S.A Supp , the district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and determine whether the State has carried its burden to establish probable cause that the defendant's use of force was not statutorily justified." 305 Kan. at

22 The rules of evidence apply in these types of hearings. The trial court must make the probable cause determination either based on stipulated facts or evidence received at a hearing, or both. The trial court must also consider statutory presumptions when they are factually implicated. 305 Kan. at A quick review of a fundamental point is helpful here. Probable cause is "evidence sufficient for a person of 'ordinary prudence and caution to conscientiously entertain a reasonable belief' of [Macomber's] guilt despite his claim of justified use-of-force immunity." State v. Ultreras, 296 Kan. 828, 846, 295 P.3d 1020 (2013). For our part, we will perform a two-fold review. When the lower court ruling involves factual findings arising out of disputed evidence, the reviewing court will not reweigh the evidence but will review those factual findings for supporting substantial competent evidence only. The ultimate legal conclusion based on those facts will be reviewed de novo. When there are no disputed material facts, the appellate court exercises unlimited review. Hardy, 305 Kan. at Here, the trial court held an evidentiary hearing on Macomber's motion to dismiss on immunity grounds, at which Macomber called witnesses. Detective Roger Smith testified that he interviewed Kenoly. Kenoly stated that Ryan reached into the car at Macomber, they tussled for a few moments, and Ryan said, "[S]o now you're going to shoot me," and he used the word "mother-fucker." Officer Alexander Wall testified that he interviewed Taylor. Taylor stated that Ryan was trying to get into Macomber's car. Sergeant Jennifer Cross testified that she also interviewed Taylor. Taylor stated that Ryan was trying to get Risa out of Macomber's car. Macomber argued that there was a struggle for the gun and the State did not meet its burden to show probable cause that he was not acting in self-defense. 22

23 The trial court considered the sworn testimony presented by Macomber at the hearing and prior sworn testimony by the parties. The court also took into consideration the presumption that Macomber had no duty to withdraw. The court denied Macomber's motion, ruling the use of force was beyond what a reasonable person would have believed necessary: "I find that the use of force was not necessary under the factual circumstances that were before the Court. It's beyond what a reasonable person under the circumstances would have believed was necessary. I also found that the defendant's statement during the point in time of the trial that he testified that Ryan Lofton had... threatened to shoot him was not a credible statement. That doesn't mean it doesn't come in for the jury to weigh at that point in time. I weighed it for a specific purpose, and that was the purpose on the motion to dismiss based on immunity at this point in time. The defendant's version that Ryan Lofton was reaching into the car when the gun went off is not supported by the scientific evidence or the factual evidence in this case. There is quite simply a break in time between when Mr. Lofton was reaching in the car to when the victim, Mr. Lofton, was shot in this case. There is no evidence that Mr. Lofton had a gun. In fact, the defendant admits that, and he was pretty sure he didn't have a gun at one point in time and later he testified that he did not have a gun, referring to Mr. Lofton. "Anyway, what I find is that the State has met its burden in this particular case and that was they had to establish that the force was not justified as part of the probable cause determination. And I find that they have met that burden and I'm dismissing or denying, I should say, the defendant's motion to dismiss based on immunity grounds in this case." The trial court took the correct procedural approach, even though it lacked the guidance of Hardy. 23

24 On appeal, Macomber contends the trial court erred in three ways by finding: Macomber's version of events was not compatible with the factual and scientific evidence in light of the eyewitness testimony and Dr. Pojman's testimony; there was a "break in time" when no evidence was presented regarding the timing of events; and Macomber's statement that Ryan threatened to shoot him was not credible. Both parties broaden their field and point us to evidence from the preliminary hearing and first jury trial. At Macomber's first jury trial, Macomber testified that Ryan said, "I guess I'm going to have to shoot you then." Macomber testified that he watched Ryan to see if Ryan had a gun. Ryan did not have a gun. Ryan started reaching in the window, and Macomber cocked his gun. Macomber thought Ryan was trying to unlock the door. Ryan said, "What are you going to do, shoot me, mother fucker," and grabbed the gun. Macomber thought about shooting a round off to get Ryan off the car and then the gun went off. He said, "I don't know if I pulled the trigger. I don't know if it hit the door. I don't know." Risa testified that Macomber pulled out a gun and aimed the gun at Ryan as Ryan walked toward the driver's side of the car. Risa testified that the driver's side window was down about 4 inches. She testified there was not enough room for Ryan to reach in and touch Macomber. She testified Ryan did not threaten to shoot Macomber or threaten him in any way. Risa also testified she did not remember the words that were spoken. Risa never saw Ryan reach in the driver's side window. Risa tried pulling Macomber's arm away from the window where Ryan was standing. She could not get his arm away so she got out of the car, and that is when she heard the gunshot. 24

25 Taylor testified that she observed Risa struggling for something. Then Taylor saw a "flash" and heard a gunshot. It looked like Risa was trying to keep Macomber and Ryan apart. It was during the struggle that she heard the gunshot. Taylor assumed Ryan must have seen the gun because he was turning around to run from the car when he was shot. She did not see whether Ryan reached into the car. At the preliminary hearing, Kenoly stated that he observed a tussle between Macomber and Ryan that lasted approximately 5 seconds. The tussle was through the open window. Ryan was by the driver's side not even a foot away, standing over the driver's side window. Kenoly did not hear Ryan make any threats to Macomber. When Ryan was shot, he was still standing by the car. At the first trial, Dr. Pojman testified the range of fire was indeterminate. It was not a contact wound. There was no stippling or soot on Ryan or his clothing. The general range for stippling is 18 to 36 inches. But Dr. Pojman did not know whether there was intervening material that would have prevented the soot and stippling. The bullet entered Ryan's body in the back under the shoulder blade on the left side. The bullet traveled predominantly left to right with a very slight back-to-front motion. A right-handed shooter could have been towards his side. Hedy Saville testified that Macomber told her that Ryan had said, "I should just go get a gun and shoot you." Macomber said that he "learned when I was in prison that you do it to them before they do it to you" so he shot Ryan. Agent Bundy testified that Macomber told him Ryan tried to grab the gun. The trial court weighed all of this conflicting evidence. We will not. See State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016). 25

26 Macomber first challenges the trial court's finding that his version of events was not compatible with the factual and scientific evidence. Macomber references generally the eyewitness testimony and Dr. Pojman's testimony. But the eyewitnesses all gave different accounts of what happened. And Dr. Pojman could not definitively determine how close Ryan and Macomber were when the shot was fired or whether Ryan was turning away. But it was clear that this was not a contact wound and the bullet entered Ryan's back below the shoulder blade. It was also clear that Macomber knew Ryan did not have a gun. Kenoly's testimony generally supported Macomber's version of events. But Kenoly did not hear Ryan threaten Macomber, nor did he see Ryan reach for Macomber's gun. Risa's and Taylor's testimony disputed Macomber's version of events. This court cannot reweigh this evidence. See Daws, 303 Kan. at 789. There was substantial evidence to support the trial court's finding based on the testimony of Dr. Pojman, Risa, and Taylor. Next, Macomber challenges the trial court's finding that there was a "break in time" because no evidence was presented regarding the timing of events. As best as can be discerned from the witness testimony, there was a struggle that lasted approximately 5 seconds between either Ryan and Macomber or Macomber and Risa, or both. Ryan was either just standing next to the driver's side door or turning away from the car when Macomber fired his gun. Dr. Pojman found no stippling on Ryan's body indicating Ryan was not in close range when shot. The timing of when Ryan's arm was in the car was uncertain. Reasonable minds could conclude either way. Finally, Macomber challenges the trial court's finding that Macomber's statement that Ryan threatened to shoot him was not credible. None of the eyewitnesses heard Ryan threaten to shoot Macomber. Risa testified that Ryan did not threaten Macomber. Obviously, the trial court believed one witness over another, deciding credibility. We will not make a credibility determination and see no reason to modify the court's ruling on this point. State v. Talkington, 301 Kan. 453, 461, 345 P.3d 258 (2015). 26

27 The State had the burden to show probable cause that it did not appear to Macomber, or Macomber did not reasonably believe, use of deadly force was necessary to prevent imminent death or great bodily harm. See K.S.A Supp ; K.S.A Supp ; Hardy, 305 Kan. 1001, Syl. 1. The trial court did not err in concluding that the State met its burden. There was sufficient evidence to find that Macomber did not reasonably believe use of deadly force was necessary. We find no reversible error in the court's ruling that Macomber was not immune from prosecution. Affirmed. 27