Foreseeability Cannot Supply Specific Intent for Aiding-and-Abetting Premeditated Murder; Limits on Involuntary Manslaughter Lesser-Included Instructions

Introduction

In State v. Wright (Kan. Jan. 30, 2026), the Kansas Supreme Court affirmed Dontavion Quancheze Wright’s convictions for (1) first-degree premeditated murder (Aaron Villarreal) and (2) second-degree intentional murder (Dylan Spencer). The case arose from a late-night shooting at Villarreal’s Junction City home after Wright—who had been told to stop touching 13-year-old A.F.—left, returned minutes later with an armed accomplice (“Nook,” later identified as Nathaniel Holmes), and gunfire erupted inside the home and behind it.

On appeal, Wright challenged: (a) jury instructions (accomplice liability and refusal to instruct involuntary manslaughter), (b) the district court’s answer to a deliberation question, (c) alleged prosecutorial error, (d) sufficiency of evidence of premeditation (especially as to Villarreal), and (e) cumulative error.

Summary of the Opinion

The court affirmed. It found one instructional defect: the accomplice-liability instruction included a “reasonable foreseeability” paragraph that should not be used for specific-intent crimes such as first-degree premeditated murder. But because Wright did not object, the court applied clear-error review and held it was not “clearly erroneous” given the instructions as a whole and the arguments of counsel.

The court further held:

  • Reckless involuntary manslaughter under K.S.A. 21-5405(a)(1) is legally a lesser included offense of premeditated first-degree murder, but it was factually inappropriate on this record (the only reasonable inference was intentional killing).
  • Felony-based involuntary manslaughter under K.S.A. 21-5405(a)(2) premised on aggravated assault is not a lesser included offense of premeditated first-degree murder because it requires proof of a predicate felony distinct from the homicide.
  • The district court’s response to the jury’s question (about researching differences between first- and second-degree murder) did not misstate the law.
  • The prosecutor’s statements stayed within permissible “wide latitude.”
  • Sufficient evidence supported premeditation as to Villarreal (including circumstantial evidence and reasonable inferences, without impermissible inference stacking).
  • Cumulative error failed because there was only a single, non-reversible instructional error.

Analysis

1) Precedents Cited

A. Instructional-error framework, preservation, and “clear error”

  • State v. Holley supplied the court’s multi-step instructional-error framework: reviewability/preservation, legal and factual appropriateness, then reversibility/harmlessness.
  • State v. Peters and State v. Mendez anchored the consequence of non-objection: when no objection is made, K.S.A. 22-3414(3) triggers “clear error” review, requiring the appellant to show both error and prejudice—i.e., the court must be “firmly convinced” the verdict would have differed absent the error.
  • State v. Plummer reiterated the baseline rule that an instruction is legally infirm if it does not “fairly and accurately” state the law.

B. Accomplice liability, foreseeability, and specific-intent crimes

  • State v. Gonzalez and the Notes on Use to PIK Crim. 4th 52.140 informed the central holding: foreseeability language should not be used to prove aiding-and-abetting liability for a specific-intent crime.
  • State v. Engelhardt was pivotal on the specific-intent nature of premeditated murder: an aider and abettor must personally possess (or share) the requisite premeditation; foreseeability cannot substitute for that mental state.
  • State v. Overstreet provided a cautionary example where foreseeability language plus prosecutorial emphasis created a real risk the jury convicted on foreseeability rather than on the required specific intent; the Wright court distinguished it because Wright was not charged with other crimes like aggravated assault and the prosecutor did not argue the foreseeability paragraph.
  • State v. Hollins reinforced the “instructions as a whole” approach to assessing whether jurors were misled.

C. Lesser-included instructions and involuntary manslaughter

  • State v. Gentry provided general guidance on lesser included offense instructions.
  • State v. James and State v. Haygood supported the legal proposition that reckless involuntary manslaughter (K.S.A. 21-5405(a)(1)) is a lesser degree of premeditated first-degree murder and thus a lesser included offense.
  • State v. Berkstresser anchored the factual-appropriateness test: view evidence in the light most favorable to the defendant and ask whether it would “reasonably justify” conviction on the lesser.
  • State v. McCullough distinguished “intentional act” from “unintentional but reckless killing,” while State v. Bobian (quoting State v. Carter) stated a reckless-homicide instruction is improper when the only reasonable inference is intentional killing.
  • State v. Calderon and State v. Bailey illustrated the court’s consistent treatment of pointing a weapon and firing (or stabbing) as intentional conduct for homicide-instruction purposes; State v. Davis was noted for Bailey’s partial overruling on other grounds.

D. Jury questions during deliberations

  • State v. Boyd supplied the two-step review: de novo to see if the response is legally erroneous or nonresponsive; if legally correct, abuse-of-discretion review for sufficiency/propriety.
  • State v. Fraire and State v. Green underscored preservation limits and invited-error doctrine where counsel affirmatively approves the response.
  • State v. Wade approved the practice of directing jurors back to the written instructions.
  • State v. Younger and State v. Boeschling articulated Kansas abuse-of-discretion standards and the deference owed where multiple legally appropriate answers exist.

E. Prosecutorial error standards

  • State v. Bodine confirmed no contemporaneous objection is required to preserve claims about voir dire/opening/closing.
  • State v. Alvarado-Meraz framed the “wide latitude” test and cataloged common errors (misstating law, facts not in evidence, improper opinions, burden shifting).
  • State v. Hillard required contextual reading rather than isolating snippets.
  • State v. Z.M. emphasized that misstatements of law are prosecutorial error.
  • State v. Dotson (quoting State v. Stanley) supplied the modern articulation of premeditation’s temporal and cognitive components and warned against “instantaneous premeditation” arguments; State v. Marks illustrated a prosecutorial misstatement where premeditation was argued to form “during the act itself.”
  • State v. Watson, State v. Stimec, and State v. Hall governed factual argument: prosecutors may draw reasonable inferences supported by the record but may not argue facts without evidentiary foundation or comment on facts not in evidence.
  • On prejudice, the court cited Chapman v. California and Kansas’ adoption in State v. Sherman, with burden allocation from State v. Ward.

F. Sufficiency of evidence and inference limits

  • State v. Aguirre supplied the standard: view evidence in light most favorable to the State; do not reweigh or judge credibility.
  • State v. Barnes and State v. Potts reinforced that circumstantial evidence can prove even the gravest crimes and has no lesser probative value.
  • State v. Chandler and State v. Logsdon allowed reasonable inferences and presumptions from established facts.
  • State v. Banks provided the “no inference stacking” constraint (circumstances must be proved, not presumed from other presumptions).
  • State v. Netherland clarified that multiple pieces of circumstantial evidence supporting a single inference is not inference stacking.
  • For premeditation factors, the court relied on State v. Killings, while using State v. Cofield, State v. Jamison, and State v. Blansett as examples of circumstantial indicators (number of shots, pursuit, multiple wounds).

G. Cumulative error

  • State v. Guebara stated the cumulative error doctrine.
  • State v. Waldschmidt held that unpreserved instructional errors that are not clearly erroneous cannot be aggregated.
  • State v. Gallegos confirmed cumulative error does not apply where there are no errors or only one error.

2) Legal Reasoning

A. The new and clarifying rule: foreseeability cannot establish specific intent for aiding and abetting

The court treated the foreseeability paragraph in PIK Crim. 4th 52.140 as a doctrinal mismatch for specific-intent crimes. Premeditated first-degree murder requires proof of premeditation (a specific intent), and under State v. Engelhardt an aider and abettor must possess that premeditation. Foreseeability—an objective, consequence-based concept—cannot stand in for the defendant’s subjective “thought the matter over beforehand” requirement.

Yet the holding was not simply “instruction erroneous”; it was “instruction erroneous but not clearly erroneous.” The court’s prejudice analysis turned on:

  • the absence of other charged crimes that would invite a foreseeability-to-murder shortcut (distinguishing State v. Overstreet);
  • the prosecutor’s failure to argue the foreseeability paragraph;
  • the remaining instructions’ repeated, correct requirement that the State prove intent and premeditation beyond a reasonable doubt.

B. Lesser included involuntary manslaughter: legal vs factual appropriateness

The opinion sharply separates two inquiries.

  • Legal appropriateness: Reckless involuntary manslaughter under K.S.A. 21-5405(a)(1) is a “lesser degree” of premeditated first-degree murder (per State v. James and State v. Haygood), so it is legally eligible as a lesser included offense.
  • Factual appropriateness: Eligibility does not compel an instruction. Under State v. Berkstresser and State v. Bobian, the evidence must reasonably support an unintentional-but-reckless killing. Here, returning armed, confronting, and firing multiple shots supported only an intentional killing inference—making the instruction improper.

C. Why felony-based involuntary manslaughter (aggravated assault) is not lesser included of premeditated murder

The court announced a bright structural point: K.S.A. 21-5405(a)(2) requires proof of an additional element—commission (or attempt/flight) of a qualifying predicate felony “distinct from the homicide.” Because first-degree premeditated murder does not require proof of that separate predicate felony, subsection (a)(2) cannot be lesser included of premeditated murder.

The court reinforced this through the statutory architecture of K.S.A. 21-5402(c), noting aggravated assault’s placement in the “distinct-from-the-homicide” list, reflecting the merger concern when the assault is merely the lethal act itself.

D. Jury question response: lawful “refer back to elements” approach

Applying State v. Boyd and State v. Wade, the court held the judge meaningfully responded by instructing jurors not to research and to compare the elements in the written instructions. The challenged phrasing (“compare whether the State has the burden to prove”) was treated as an inartful misstatement rather than a legal misdirection, especially given defense counsel’s express agreement (implicating State v. Fraire’s invited-error principles).

E. Prosecutorial error: enforcing (but not expanding) the “instantaneous premeditation” line

The court measured the prosecutor’s closing against State v. Dotson (quoting State v. Stanley) and State v. Marks. It found no improper “premeditation can form during the act” argument. Instead, the prosecutor pointed to pre-shooting conduct (leaving and returning armed with an armed accomplice), and circumstantial indicators such as sustained gunfire and pursuit—factors long accepted as relevant (e.g., State v. Cofield; State v. Jamison).

On “personal opinion” claims, the court treated “the State submits” and similar phrasing as argument about proof, not vouching. It also noted the prosecutor’s ethical baseline (citing Kansas Rules of Professional Conduct 3.8(a)) as context for a prosecutor explaining the office’s screening role, without converting that explanation into an improper guilt opinion.

F. Sufficiency: premeditation may be inferred without inference stacking

The defense’s insufficiency theory depended on isolating premeditation to “the chase” and then denying Wright’s participation in it. The court rejected that framing by (a) allowing a reasonable inference that both shooters pursued Villarreal based on shell casings from two guns and the physical scene evidence, and (b) identifying multiple independent premeditation indicators (returning armed after being confronted, lack of provocation, multiple shots, flight without aid). Under State v. Banks, this was not impermissible inference stacking; under State v. Netherland, multiple facts can support one inference.

3) Impact

  • Sharper boundary for accomplice liability in specific-intent crimes: The syllabus statement that foreseeability cannot establish aiding-and-abetting liability for a specific-intent crime will likely drive trial courts to tailor PIK Crim. 4th 52.140—either omitting foreseeability language entirely in specific-intent cases or carefully limiting it to non-specific-intent “other crimes” theories where appropriate.
  • More disciplined lesser-included practice for involuntary manslaughter: Trial courts must separate the “legal availability” of reckless involuntary manslaughter as a lesser degree from the “factual basis” requirement—especially in firearm cases where intentional discharge is the only reasonable inference.
  • Structural exclusion of subsection (a)(2) from premeditated murder lessers: The holding that K.S.A. 21-5405(a)(2) is not a lesser included offense of premeditated first-degree murder (when based on an independent predicate felony such as aggravated assault) offers prosecutors and defense counsel clearer charging and instruction expectations and may reduce instruction litigation premised on felony-based involuntary manslaughter as a compromise verdict in premeditated-murder trials.
  • Cumulative error narrowed by preservation doctrine: By reaffirming that unpreserved instructional errors that are not clearly erroneous cannot be aggregated (State v. Waldschmidt), the opinion underscores the strategic cost of non-objection at the instruction conference.

Complex Concepts Simplified

  • Specific intent vs. general intent: A “specific intent” crime requires proof of a particular mental purpose beyond doing the act. Here, premeditated murder requires not only intent to kill but also “premeditation”—thinking it over beforehand. “Foreseeability” (what a person could reasonably anticipate) is not the same as “premeditation” (what the person actually decided after reflection).
  • Aiding and abetting: Under K.S.A. 21-5210, a person is liable if, with the required mental state, they intentionally aid another in committing the crime. For premeditated murder, the aider must share or form premeditation—not merely foresee that someone might be killed.
  • Clear error review: If the defense does not object to an instruction, reversal requires more than showing “mistake.” The appellate court must be firmly convinced the jury would likely have reached a different verdict without the instruction.
  • Lesser included offense (legal vs. factual): “Legally included” means the lesser fits within the greater by statute/elements. “Factually appropriate” means the evidence could reasonably support the lesser verdict.
  • Inference stacking: Jurors may infer facts from proven facts, but the State cannot ask jurors to build an inference on top of another inference without a proven factual base for each step.

Conclusion

State v. Wright is most significant for its instruction-law clarifications: foreseeability is not a shortcut to the specific intent required for aiding-and-abetting liability in premeditated murder; reckless involuntary manslaughter is a legally available lesser of premeditated murder but only when the evidence could support an unintentional (though reckless) killing; and felony-based involuntary manslaughter under K.S.A. 21-5405(a)(2) (here, aggravated assault) is not a lesser included offense of premeditated murder because it requires a distinct predicate felony. The opinion also reinforces pragmatic trial norms—meaningful jury-question responses, contextual evaluation of prosecutorial argument, strict sufficiency standards without reweighing, and preservation-driven limits on cumulative error.