Date: Jul 20, 2026

State v. Barker (Kan. 2026): Invited Error Requires an Affirmative Omission/Refusal of Jury Instructions; Nonrequested Lesser-Included Instructions Are Reviewed for Clear Error

Introduction

In State v. Barker (July 17, 2026), the Kansas Supreme Court affirmed Billy Shane Barker’s convictions for first-degree premeditated murder and related weapons offenses stemming from the shooting death of Levi Porter during a physical altercation. The case presented two recurring criminal-appeal issues: (1) when the invited error doctrine bars a defendant from complaining about omitted jury instructions, and (2) how appellate courts evaluate omitted lesser included homicide instructions that were not requested. Barker also alleged prosecutorial error during closing argument regarding premeditation.

The court held the district court erred by failing to give several lesser-included homicide instructions even though Barker did not request them, but concluded the omissions were not clearly erroneous. It also rejected Barker’s prosecutorial-error claims, concluding the prosecutor’s comments were consistent with Kansas law on premeditation and were supported by reasonable inferences from the evidence.

Summary of the Opinion

Invited error did not apply because Barker did not affirmatively ask the court to omit lesser-included instructions or affirmatively reject an offer to give them; he merely did not request them.
The district court should have instructed on the following lesser included offenses as factually supported: second-degree intentional murder, second-degree reckless murder, reckless involuntary manslaughter, and excessive force involuntary manslaughter.
Because Barker did not preserve the instructional issues, the court applied clear error review and held Barker failed to “firmly convince” the court the verdict would have changed.
The prosecutor’s closing statements on premeditation did not misstate the law under State v. McLinn and were permissible inferences from testimony and circumstances.

Analysis

Precedents Cited

1) Invited error and instruction omission

State v. Douglas, 313 Kan. 704, 490 P.3d 34 (2021): The central framework for invited error in the instruction context. Barker emphasizes Douglas’ rule that invited error applies only when a party affirmatively requests omission or affirmatively rejects an offered instruction—mere silence or failure to request is insufficient. Douglas also supplies the “but-for” causation lens.
State v. Barnes, 320 Kan. 147, 563 P.3d 1225 (2025): Reinforces that there must be a causal connection between counsel’s statement and the instruction decision. Barker uses Barnes to distinguish between “not requesting” and “inducing omission.”
State v. Angelo, 287 Kan. 262, 197 P.3d 337 (2008): Illustrates true invited error where a defendant affirmatively refused a lesser-included instruction to pursue an “all-or-nothing” strategy. Barker contrasts Angelo with Barker’s record, which lacked an affirmative refusal.

2) Instruction-error framework, lesser-included factual appropriateness, and preservation

State v. Thille, 320 Kan. 435, 570 P.3d 18 (2025): Provides the three-step instructional review approach (legal appropriateness, factual appropriateness, reversibility) and ties reversibility to preservation.
State v. Lowe, 317 Kan. 713, 538 P.3d 1094 (2023): Supplies the factual-appropriateness standard (“some evidence,” viewed favorably to the defendant, from whatever source) and the “all-but-one-element” framing. Barker uses Lowe to show premeditation is the differentiating element between first-degree and second-degree intentional murder.
State v. Gentry, 310 Kan. 715, 449 P.3d 429 (2019): Confirms homicide lesser-included relationships and reiterates that evidence for lesser-included instructions can come “from whatever source.”
State v. Berkstresser, 316 Kan. 597, 520 P.3d 718 (2022): Supplies the clear-error burden— the defendant must “firmly convince” the court the jury would have reached a different verdict.
State v. Hardwick, 321 Kan. 519, 582 P.3d 555 (2026): Clarifies that a defendant’s testimony, even uncorroborated, can support a lesser-included instruction. Barker uses Hardwick to support giving excessive-force involuntary manslaughter.

3) Mental states for reckless homicide and degree-of-recklessness disputes

State v. James, 309 Kan. 1280, 443 P.3d 1063 (2019): Distinguishes unintentional second-degree murder (reckless with extreme indifference) from involuntary manslaughter (reckless) as primarily a degree difference, often for the jury to resolve. Barker uses James to justify giving both reckless instructions where evidence supports a struggle.

4) Imperfect self-defense and excessive-force involuntary manslaughter

State v. Nunez, 313 Kan. 540, 486 P.3d 606 (2021): States the principle that killing while lawfully acting in self-defense but using excessive force constitutes involuntary manslaughter.
State v. Collins, 257 Kan. 408, 893 P.2d 217 (1995): Adds the limiting condition that an excessive-force involuntary manslaughter instruction is appropriate only when evidence shows the defendant intentionally acted in self-defense.

5) Premeditation proof and prosecutor closing-argument latitude

State v. Scaife, 286 Kan. 614, 186 P.3d 755 (2008): Used twice: (a) to reject Barker’s claim that a lesser instruction turns on whether premeditation evidence is “circumstantial,” and (b) to describe direct evidence and the role of inference.
State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (1974): Cited for the parity of direct and circumstantial evidence.
State v. Soto, 301 Kan. 969, 349 P.3d 1256 (2015): Defines premeditation as “thought the matter over beforehand,” without requiring a particular duration.
State v. McLinn, 307 Kan. 307, 409 P.3d 1 (2018): Barker argues McLinn requires contemporaneity between intent and the act, but the court rejects that reading, characterizing McLinn as reaffirming that premeditation asks when the intent to kill was formed.
State v. Dotson, 319 Kan. 32, 551 P.3d 1272 (2024): Reaffirms no specific time period is required for premeditation.
State v. Ford, 320 Kan. 507, 571 P.3d 500 (2025): Provides the boundary for prosecutorial argument—error occurs if the prosecutor misstates law or argues facts/inferences with no evidentiary foundation.
State v. Shields, 315 Kan. 814, 511 P.3d 931 (2022): Cited for the “wide latitude” to draw reasonable inferences from the evidence.

Legal Reasoning

A. Invited error: “Not requesting” is not the same as “affirmatively omitting”

The State attempted to block review by characterizing the defense’s “No, Judge” responses as inducing omission. The court rejected that approach by applying State v. Douglas and State v. Barnes: invited error requires an affirmative act—either requesting the omission or rejecting an offer to give the instruction—and a causal “but-for” link. Here, the record showed the district court independently concluded lesser-included instructions were “not required.” Barker’s counsel did not ask the court to omit instructions; he simply did not request them.

This portion of the opinion matters because it preserves appellate review in cases where defense counsel stays silent or declines to request lesser instructions but does not strategically refuse them.

B. Instruction error framework: legal + factual appropriateness, then reversibility

Using State v. Thille, the court proceeded in three steps. First, legal appropriateness was conceded: second-degree murder and involuntary manslaughter are lesser included offenses of first-degree premeditated murder under Kansas law. Second, the court evaluated factual appropriateness under State v. Lowe and State v. Gentry: whether “some evidence,” from any source, viewed favorably to the defendant, would justify the lesser conviction. Third, it assessed reversibility under the clear error standard because Barker did not request the instructions.

C. Factual appropriateness: why each omitted instruction should have been given

1) Second-degree intentional murder

The only element distinguishing first-degree premeditated murder from second-degree intentional murder is premeditation. Under Lowe’s “all-but-one-element” reasoning, a fact question exists when the differentiating element could be resolved either way by a rational jury. The court relied on State v. Scaife to reject the idea that a lesser instruction is unnecessary whenever premeditation evidence is strong or “direct.” Credibility and weight of prior threats and surrounding circumstances are classic jury issues; therefore the instruction was factually appropriate.

2) Second-degree reckless murder and reckless involuntary manslaughter

Barker’s testimony supplied “some evidence” that the gun discharged during a struggle as he attempted to prevent Porter from taking it. That narrative can support an unintentional but reckless killing, leaving the degree of recklessness for the jury. Citing State v. James, the court explained that second-degree reckless murder and reckless involuntary manslaughter often turn on degree, and nothing in the record foreclosed culpability at either end if the jury credited the struggle narrative.

3) Excessive force involuntary manslaughter

Excessive force involuntary manslaughter is an “imperfect self-defense” concept recognized in State v. Nunez and bounded by State v. Collins (requiring evidence the defendant intentionally acted in self-defense). The court found “some evidence” supporting the instruction because Barker testified he feared Porter and acted to gain control of the gun, while the State’s forensic evidence could support a finding that Barker intentionally fired. Even if Barker’s testimony was self-serving, the court invoked State v. Hardwick to confirm that a defendant’s testimony alone can justify a lesser instruction.

D. Reversibility: why the errors were not “clear error”

Because Barker did not request the instructions, he bore the burden under State v. Berkstresser to “firmly convince” the court that the jury would have reached a different verdict.

Second-degree intentional murder: Applying State v. Douglas, the court held overwhelming evidence of premeditation defeated the claim of prejudice. The threats to “shoot him in the head” (Larry Link), the angry statement and gesture to Porter's grandmother hours before, and the circumstances of the gunshot supported premeditation under Kansas standards articulated in State v. Soto.
Reckless homicide options: The court reasoned that overwhelming evidence of intentional killing (forensic proof undermining an accidental discharge, positioning evidence, bloodstain analysis, and the nature of the wound) made it unlikely the jury would have selected reckless alternatives.
Excessive force involuntary manslaughter: The court found Barker’s prejudice theory required the jury to accept incompatible slices of both sides’ cases (intentional shot but not premeditated; self-defense but accidental discharge), which the court deemed unpersuasive under the firm-conviction standard.

E. Prosecutorial comments on premeditation

Barker claimed the prosecutor misstated premeditation law by referencing Barker’s prior statements and earlier hostility. The court applied State v. Ford (no misstatement of law or facts without evidentiary foundation) and held there was no error. It rejected Barker’s reading of State v. McLinn, explaining that Kansas premeditation does not require a continuous, temporally contemporaneous thought process up to the act; it requires only that intent to kill was formed beforehand, with no fixed duration, consistent with State v. Dotson. The prosecutor’s argument was also a permissible inference under State v. Shields.

Impact

Clarifies the boundary of invited error in instruction omissions: Trial counsel’s failure to request lesser-included instructions—without an affirmative request to omit or affirmative refusal—does not forfeit appellate review under invited error. This encourages more precise record-making at instruction conferences and limits the State’s ability to recast nonrequests as strategic “all-or-nothing” refusals.
Reinforces that “some evidence” can come from the defendant alone: By relying on State v. Hardwick, the opinion underscores that even self-serving defendant testimony can trigger factual appropriateness for lesser instructions.
But it also underscores the steepness of clear-error review: Even where multiple lesser instructions were required, the conviction stands because the defendant must firmly convince the appellate court of a different likely verdict. Practically, Barker incentivizes defense counsel to preserve issues by requesting lesser-included instructions when supported.
Premeditation arguments in closing: Prosecutors may argue premeditation by connecting earlier threats and behavior to the later killing, so long as they stay within Kansas’ definition of premeditation and the record evidence.

Complex Concepts Simplified

Invited error doctrine: A party cannot ask for (or affirmatively accept) a trial-court ruling and then complain about that same ruling on appeal. In jury instructions, it applies only if the party affirmatively asked to omit an instruction or affirmatively rejected an offer to give it—not merely by staying silent.
Lesser included offense instruction: An instruction that allows the jury to convict of a less serious crime contained within the charged offense (e.g., second-degree murder within first-degree murder), when evidence could reasonably support the lesser verdict.
Factual appropriateness (“some evidence”): The instruction is warranted if there is some evidence—no matter which party produced it and even if it is weak—that could support convicting on the lesser offense, viewing that evidence in the light most favorable to the defendant.
Clear error review: When the defendant did not request the instruction, the conviction will be reversed only if the defendant can firmly convince the appellate court the jury would have reached a different verdict. It is a difficult standard to meet.
Premeditation (Kansas): “Thought the matter over beforehand.” No specific time period is required; the key question is when the intent to kill was formed. It need not be continuously present right up to the moment of the act.
Excessive force involuntary manslaughter (imperfect self-defense): When a person is otherwise justified in self-defense but uses more force than legally allowed and a death results, the crime can be involuntary manslaughter.

Conclusion

State v. Barker cements a practical rule about invited error: a defendant does not “invite” instructional omission by merely declining to request lesser-included instructions. The decision also reiterates that lesser-included homicide instructions may be factually appropriate based on minimal evidence, including the defendant’s own testimony. Yet Barker simultaneously demonstrates the powerful limiting effect of clear error review—substantial instructional mistakes may still be harmless where the evidence of premeditation and intent is overwhelming. Finally, the opinion confirms prosecutors may argue premeditation by linking threats and earlier conduct to the killing, consistent with Kansas’ settled premeditation definition and evidentiary inferences.