State v. Butler: Victim’s Age Is a Protected-Class Element Under K.S.A. 21-5601(b)(1) (No Knowledge Required)

Introduction

In State v. Butler (Kan. Jan. 9, 2026), the Kansas Supreme Court affirmed Daisha Butler’s convictions for first-degree felony murder and aggravated endangering a child arising from the shooting death of N.M., a 17-year-old. The State’s felony-murder theory rested on the statutorily “inherently dangerous felony” of aggravated endangering a child.

The appeal presented several issues: (1) whether evidence was sufficient to prove aggravated endangering a child and thus felony murder; (2) whether a witness’s brief reference to seized “marijuana” required a mistrial under K.S.A. 22-3423(1)(c); (3) whether the jury should have been instructed on misdemeanor endangering a child as a lesser included offense; (4) whether the court’s self-defense instructions (including mutual combat language) were erroneous; and (5) whether cumulative error warranted reversal.

The decision’s most significant doctrinal development is its resolution—expressly as a matter of first impression—of whether the State must prove a defendant’s knowledge of the victim’s minor status under K.S.A. 21-5601(b)(1).

Summary of the Opinion

Sufficiency / new rule: Under K.S.A. 21-5601(b)(1), the phrase “child under the age of 18 years” creates a protected class element. The State must prove only the victim’s age as a fact; it need not prove the defendant knew (or was reckless as to) that age. Recklessness attaches to the endangering conduct, not the victim-classification element.
Mistrial: Applying K.S.A. 22-3423(1)(c) and the two-step framework of State v. Ward, the court assumed (without deciding) a “fundamental failure,” but held the fleeting marijuana reference was curable and did not make continuing the trial unjust.
Lesser-included instruction: Even assuming a misdemeanor endangering-a-child instruction might have been factually appropriate, the omission was not clearly erroneous because firing toward a group of children presented “real and actual” danger making the conduct inherently unreasonable.
Self-defense instruction: The district court erred by giving any self-defense instruction because it was not factually appropriate (mutual combat, lack of withdrawal, and no reasonable basis for deadly force), but the error was harmless.
Cumulative error: Under State v. Waldschmidt, unpreserved instructional issues that are not clearly erroneous cannot be aggregated; with only a single harmless error remaining, cumulative error did not apply (per State v. Gallegos).

Analysis

Precedents Cited

1) Sufficiency of the evidence and inference-drawing

The court anchored its sufficiency review in settled Kansas standards: State v. Aguirre (quoting State v. Potts) supplied the governing lens—view the evidence in the light most favorable to the State, and do not reweigh evidence or assess credibility. State v. Barnes (2025) and State v. Potts reinforced that circumstantial evidence can prove even grave offenses and is not inferior to direct evidence. State v. Chandler and State v. Logsdon supported the State’s ability to ask jurors to draw reasonable inferences from proven facts.

2) “Presence” versus “age” in aggravated endangering a child

Butler relied on State v. Herndon and State v. Pattillo, but the Supreme Court treated both as “presence” cases—focused on whether the defendant consciously disregarded a risk that a person (a child) was in the “danger zone.” Herndon reversed because the evidence did not show the shooter had reason to think a child was present. Pattillo rejected a heightened “knowledge” requirement and held recklessness can be shown if the defendant was aware of a substantial and unjustifiable risk a child was in the danger zone.

Butler distinguished these authorities: the question here was not whether Butler had reason to think a person was present, but whether she had to know that the endangered person was under 18. The court held she did not.

3) Protected-zone/protected-class elements and mens rea

The opinion’s key analogy drew from drug-free school-zone jurisprudence. In State v. Swafford, the Court of Appeals held selling drugs within 1,000 feet of a school does not require proof the defendant knew he was in the zone; the element defines a protected area. This court adopted that reasoning in State v. Prosper.

Butler imported the same structure: “child under the age of 18 years” is a protected-class designation, so the State must prove the fact of age, not the defendant’s awareness of age.

4) Mistrial framework

The court invoked State v. McCullough for the idea that the “fundamental failure” inquiry varies by the type of alleged misconduct. State v. Ward supplied the canonical two-step mistrial analysis under K.S.A. 22-3423(1)(c): determine whether there was a fundamental failure; if so, determine whether prejudice is incurable and continuing the trial would be unjust. Review was for abuse of discretion per State v. Fraire, with definitional guidance from State v. Younger and burden allocation from State v. Peters.

In evaluating the fleeting other-acts reference, the court also echoed the general concern articulated in State v. Gunby: prior-crimes evidence risks suggesting criminal disposition.

5) Instructional error standards and lesser-included instructions

The court’s instructional framework came from State v. Holley (reviewability, legal/factual appropriateness, harmlessness). Preservation rules and the “clear error” consequence were tied to State v. Friday. The duty to instruct on lesser included offenses (when supported by evidence viewed favorably to the defendant) relied on State v. Berkstresser, and the court cited State v. Gentry for the general proposition that lesser-included instructions are typically legally appropriate.

On the substantive difference between misdemeanor and aggravated child endangerment, the court cited the rationale from State v. Fabre and its later description in State v. Sweet: misdemeanor endangerment involves exposure that “may” endanger and requires an “unreasonable” act; aggravated endangerment is where danger is “real and actual,” making exposure inherently unreasonable.

6) Self-defense and mutual combat

The court’s self-defense structure drew from K.S.A. 21-5222 and cases applying it: State v. Salary supplied the two-part (subjective/objective) test; State v. Knox recognized the legal availability of self-defense instructions; and State v. Wimbley described entitlement to defense instructions when supported by sufficient evidence.

For mutual combat, the court relied heavily on State v. McCullough, which, in turn, cited State v. Barnes (1997) on mutual combat’s effect on the subjective self-defense prong. State v. Friday contributed the definition and the point that initiation is irrelevant if both parties willingly engage. Finally, State v. James supplied a vivid limitation: “Shooting an unarmed person in retreat is antithetical to self-defense.”

7) Cumulative error limits

The cumulative error standard came from State v. Guebara. The court applied State v. Waldschmidt to exclude unpreserved, non-clearly-erroneous instructional issues from aggregation. And it applied State v. Gallegos to reject cumulative error where only a single error remained.

Legal Reasoning

1) The opinion’s central holding: age is not a mens rea-bearing element under K.S.A. 21-5601(b)(1)

The court reasoned from statutory structure and purpose. K.S.A. 21-5601(b)(1) includes a single culpable mental state (“recklessly”) but, grammatically and functionally, recklessness modifies the defendant’s conduct (“causing or permitting ... to be placed in a situation ... endangered”), while “child under the age of 18 years” identifies who is protected. From that, the court derived a rule: the State must prove (1) reckless endangering conduct and (2) the victim’s age as an objective fact—without proving the defendant knew the victim’s age.

The school-zone analogy (State v. Swafford, adopted in State v. Prosper) did the doctrinal work: protected-zone/protected-class elements are typically strict as to the defendant’s knowledge because the Legislature’s aim is prophylactic protection of vulnerable groups. On that logic, the Legislature’s choice to protect minors would be undermined by requiring proof of the defendant’s knowledge of minority in volatile situations (like group fights or shootings) where exact age may be unknown.

Having set the rule, the sufficiency analysis became straightforward: the victim was 17 (proven by testimony), and the evidence supported reckless endangering conduct, including ballistic evidence and testimony that Butler fired multiple shots, with the fatal shot dropping N.M.

2) Mistrial: curability and proportionality

Even assuming the marijuana reference constituted a “fundamental failure,” the court held the district judge acted within discretion in finding no incurable prejudice. The reasoning emphasized proportionality: the remark was fleeting, not developed, not tied to the charged conduct, and followed by practical mitigation (admonishing officers and giving a limiting instruction). The decision underscores that mistrial is reserved for prejudice that makes continuing the trial unjust, not for every deviation from a pretrial evidentiary agreement.

3) Lesser included offense: the “real and actual danger” line

Without definitively deciding factual appropriateness, the court resolved the claim at harmlessness (clear error) because the argument on appeal differed from the argument at trial. The court’s key point—drawing from State v. Fabre and State v. Sweet—was that firing a gun toward a group of children is inherently unreasonable, fitting aggravated endangerment rather than the misdemeanor “may be endangered” formulation. Thus, Butler could not “firmly convince” the court the jury would have chosen the lesser verdict.

4) Self-defense instruction: erroneous to give, but harmless

The court concluded self-defense was not factually supported, largely for two independent reasons: (1) mutual combat with no good-faith withdrawal and continued pursuit/hostility; and (2) failure of the objective prong (no reasonable belief that deadly force was necessary), especially given evidence the group was fleeing and unarmed and N.M. was shot in the back of the head (State v. James).

Notably, the court held the trial court erred by giving a self-defense instruction (rather than by refusing one). But it deemed the error harmless because, in the court’s view, the jury “rejected” self-defense; removing the instruction would not plausibly have changed the outcome. That harmlessness conclusion also disposed of Butler’s subsidiary complaints about mutual combat wording, imperfect self-defense involuntary manslaughter, and a burden-to-disprove instruction.

Impact

1) A clarified mens rea rule for K.S.A. 21-5601(b)(1)

The decision’s most immediate impact is doctrinal clarity: in prosecutions for aggravated endangering a child, Kansas courts should treat “under 18” as a victim-classification element requiring proof of age as fact, not proof of defendant’s knowledge of age. This will matter most in cases involving older teenagers (16–17) and strangers, where “knowledge of minority” would often be difficult to prove.

2) Felony-murder charging and proof

Because aggravated endangering a child is an inherently dangerous felony under K.S.A. 21-5402(c)(1)(S), Butler strengthens the viability of felony-murder theories predicated on child endangerment in shootings and similar reckless-violence cases: the State need not litigate the defendant’s perception of age, only the recklessness of the conduct and the victim’s actual minor status.

3) Trial management signals: mistrial and limiting instructions

The court’s handling of the marijuana reference reinforces a pragmatic approach: brief, non-emphasized other-acts references generally can be cured by prompt management and appropriate instructions, preserving trial continuity absent demonstrably incurable prejudice.

4) Defense-instruction gatekeeping

The court’s conclusion that self-defense was not factually appropriate (even though it was given) provides guidance to trial courts: mutual combat, pursuit after a fight, and shooting a retreating unarmed person are powerful indicators against factual support for self-defense. The holding may encourage more careful vetting of defense instructions to avoid confusing the issues or inviting unnecessary appellate disputes.

Complex Concepts Simplified

Protected-class element: A statutory element that identifies a group the law aims to protect (here, minors). The State must prove the victim belongs to the class (age under 18), but does not have to prove the defendant knew the victim belonged to it.
Mens rea / culpable mental state: The required mental state for criminal liability (e.g., “recklessly”). Butler holds recklessness applies to the dangerous conduct, not to knowing the victim’s age.
Felony murder: First-degree murder liability for a killing occurring during the commission (or attempt/flight) of an “inherently dangerous felony,” even without proof of premeditation.
Mistrial under K.S.A. 22-3423(1)(c): A trial restart permitted only when prejudicial conduct makes it unjust to continue. Courts ask: (1) was there a fundamental failure in the proceeding; and (2) if so, is the prejudice incurable by instruction or admonition?
Clear error (instructional): A demanding appellate standard used when an instruction issue was not properly preserved at trial: the appellant must firmly convince the court the jury would have reached a different verdict without the error.
Mutual combat: A fight both sides willingly engage in. Self-defense generally does not justify a killing arising from mutual combat unless the defendant withdraws in good faith and does everything possible to avoid the necessity of killing.
Imperfect self-defense: A partial defense (here tied to involuntary manslaughter) that can apply when a defendant uses force in purported self-defense but with excessive force. It requires that self-defense be lawfully in play; the court found it was not factually supported here.
Cumulative error: A doctrine allowing multiple trial errors, considered together, to warrant reversal even if each alone might be harmless. It generally does not apply when only one error remains, and certain unpreserved non-clear instructional claims cannot be aggregated.

Conclusion

State v. Butler materially clarifies Kansas law on aggravated endangering a child: the victim’s minority (“under 18”) is a protected-class element requiring proof of age as an objective fact, not proof the defendant knew the victim was a minor. The decision also reinforces Kansas mistrial doctrine’s emphasis on curability, maintains a demanding clear-error approach to unpreserved instruction claims, and signals skepticism toward self-defense theories where the evidence shows mutual combat, lack of withdrawal, and a retreating unarmed victim. In the broader landscape, Butler strengthens child-endangerment-based felony-murder prosecutions by eliminating “knowledge of age” as a litigation hurdle.