State v. Banks

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 128,424 STATE OF KANSAS, Appellee, v. LA'NIHA S. BANKS, Appellant. SYLLABUS BY THE COURT 1. Factual findings supporting admission of a hearsay statement are reviewed for substantial evidence. 2. When the underlying felony supporting a felony murder charge is criminal discharge of a firearm, only pure self-defense is available as a defense and must be instructed upon. Imperfect self-defense is not available and such an instruction is not legally appropriate. 3. When evaluating the factual appropriateness of a jury instruction, this court construes the facts in the light most favorable to the requesting party, even if that party did not request the instruction at trial. Appeal from Sedgwick District Court; JEFFREY GOERING, judge. Oral argument held April 9, 2026. Opinion filed August 28, 2026. Affirmed. 1  Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant. Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Kris W. Kobach, attorney general, were with him on the brief for appellee. The opinion of the court was delivered by STEGALL, J.: La'Niha S. Banks fired multiple shots at multiple vehicles after being in multiple fistfights. She claimed self-defense. A jury convicted her of felony murder, attempted murder in the first degree, four counts of aggravated assault, and two counts of criminal discharge of a firearm. This is her direct appeal. FACTS AND PROCEDURAL BACKGROUND Nineteen-year-old LaTionna Johnson died from a gunshot wound to her neck that she suffered on the night of May 20, 2023. Johnson drove her mother's car to Old Town Wichita that night with her two half sisters, DeJaznae Evans and K.E. She also drove Evans' best friend, A.C., and A.C.'s friend, Inayjha Ware. The five girls were going to Old Town for a concert afterparty at the City Nightz nightclub. Before Johnson pulled into a parking space in Old Town, the group noticed an argument between Johnson's friend, Amunique Cavitt, and La'Niha Banks. According to Banks, the "argument" transpired as follows. Banks was also in Old Town to go to the afterparty at City Nightz. She drove herself and her friend, Kearra Brown, and parked within walking distance from the club. After Banks got out of the car, she heard someone calling her name. The person calling Banks' name was Cavitt. Banks walked over, and Cavitt "tried to approach me about some boy my friend talked to, and I just told her it's none of my business." As Banks walked away, "all I remember is a group of girls running up over to me." That bunch of girls included Cavitt and members of 2 Johnson's group. There are Snapchat videos taken by Evans of Cavitt beating Banks while Banks fumbles underneath Cavitt grabbing onto hair and clothing, futilely trying to protect her head and face. On the Snapchat videos, Evans is yelling repeatedly, "Get that bitch, Amunique!" and other epithets. In the first Snapchat video, Banks was initially holding her wallet and keys, but she dropped these after Cavitt ripped Banks to the ground by her hair and punched Banks repeatedly in the head. Banks testified that Cavitt said "I'll kill you, bitch" twice while she was pummeling Banks. Eventually, Banks said that Brown was able to rescue her. But Banks was missing her phone and keys. So Banks approached the group of girls again to try to get "them to give my stuff back, and some girl just attacked me." That "some girl" was Ware. A security video from a nearby restaurant captured this fight, albeit in a grainy and distorted manner. It appears in the video that Ware was running back to Johnson's car, Banks ran up behind Ware, and then the two girls started fighting. Evans took a Snapchat video of a portion of this fight as well. In it, Ware, whose nickname is "Fatty," is seen punching Banks while Evans screams things like, "Get that bitch, Fatty!" Cavitt again joined the fray, and Evans screams, "You're getting beat on by two people [garbled word]." At the end of the video it appears Banks was able to get on top of Ware, but then she was forcibly separated from Ware when Johnson and Brown grabbed her and pulled her up. After the fight, Johnson's group eventually got back into the car, and Johnson pulled into the parking space. Johnson's vehicle is just off-screen in the restaurant surveillance video, and there are different accounts as to what happened in the brief moments when the vehicle is off-screen. Evans testified that she was in the front passenger seat. She recounted that as the car was moving forward into the parking space, Johnson was talking to Cavitt, who was parked to the left of Johnson's vehicle. Banks was outside her own car, to the right of Johnson's vehicle, but she was reaching in her car through the open window. While 3 Johnson was talking to Cavitt, Evans looked over to the right and saw Banks with a gun in her hand next to her window. Banks then walked to the back of Johnson's car, and Evans heard the gun go off six or seven times. Johnson put the car in reverse, and Evans realized Johnson had been shot in the neck when the car continued rolling back when it should have started going forward. Ware testified that after the second physical altercation, Cavitt and Banks were still yelling at each other. After Johnson's party was all back in the car, Ware was in the back middle seat. Ware saw Banks with a gun, saw her "cock it back and everything." The car was in reverse, so after the shots started firing, the car just "start[s] smacking cars, and it was just a lot going on." After Banks started shooting, Banks went to Cavitt's car, "[t]he car that she was originally fighting with." Later in her testimony, Ware elaborated that she heard Banks tell Bank's friend "pass me the gun" and reiterated that "[w]e weren't even all the way reversed out of the spot. We were, yeah, reversing out of the spot when shots started letting off." A.C. testified that she was in the back passenger's side seat. She further testified that Johnson pulled into the space and Banks had been back in her car. Banks then "hopped out." Banks was "staring" at the front passenger window with her gun, and then when the car backed up, "that's when the shots happened." K.E. was in the back seat behind the driver. She saw Banks in her car as they were pulling into the parking space with "a couple of other girls in the car." K.E. saw Banks "come from the side with a gun and then went around and just started shooting at the car." Banks had "gotten around to the back first" and shot the back passenger window, after which K.E. "didn't see anything after because I ducked my head. I was crouched down." Banks testified that she had her gun in her Spanx the entire time. She further testified that she was standing beside her car, saw a car coming towards her, and she thought "the same girl that had just got done choking me were coming to kill me." So "I 4 began to use my gun to defend myself" when she saw the car coming towards her, and she kept firing when she saw the car backing out of the stall. Subsequently, Banks went around the back of Johnson's car, and she went in front of Cavitt's car. She fired at Cavitt's car as it came towards her, and she did not see where the cars went after they moved away from her. She went back to her car and went home after Cavitt drove away. Turning back to the surveillance video, about 20 seconds after Johnson pulls into the parking space, Banks enters the frame behind where Johnson's vehicle was parked and continues towards Cavitt's car, which is off screen, as Johnson's car rapidly backs up. Cavitt, who was backed in, drives forward very fast away from Banks as Banks, with her arm extended, appears to be taking additional shots at the rear of Cavitt's vehicle. Law enforcement later documented defects from bullet holes in the front and back of Cavitt's vehicle. Meanwhile on the video, Johnson's car continues to roll back, hitting another vehicle, before wrapping around still in reverse until it is out of view again. After the shooting, Banks gave her gun to her boyfriend so he could get rid of it. She turned herself in to police a little over two weeks later. A jury ultimately convicted her of felony murder, attempted murder in the first degree, four counts of aggravated assault, and two counts of criminal discharge of a firearm. Additional facts relevant to the issues on appeal are included in the discussion below. ANALYSIS Admission of Hearsay Statement At trial, the prosecution sought to admit the following testimony from A.C.: Cavitt was yelling, before the first fight, that Banks "wants to come to my car with a gun, tripping about a nigga." The State argued that the evidence was admissible under all three exceptions to the hearsay rule under K.S.A. 60-460(d), assuming that Cavitt was 5 unavailable. The district court held that the State had met the foundation requirements for the first two exceptions under K.S.A. 60-460(d), and "[i]f Ms. Cavitt can't be subpoena[e]d and doesn't show up, then I also think that the elements in (3) are met." A.C. testified before the jury that Cavitt "specifically yelled out of her car, [']this bitch came up to my window with a gun tripping with a nigga.['] And that's when everybody got out of the car." This court reviews a trial court's determination that hearsay is admissible under a statutory exception for an abuse of discretion. State v. Miller, 284 Kan. 682, 708, 163 P.3d 267 (2007). A judicial action constitutes an abuse of discretion if: (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Younger, 320 Kan. 98, 137-38, 564 P.3d 744 (2025). Appellate courts review the factual underpinnings of a ruling for substantial competent evidence. 320 Kan. at 114. Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Smith, 312 Kan. 876, 887, 482 P.3d 586 (2021). When determining whether substantial competent evidence exists, "an appellate court must not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact." Granados v. Wilson, 317 Kan. 34, 41, 523 P.3d 501 (2023). "In determining whether substantial competent evidence supports the district court findings, appellate courts disregard any conflicting evidence or other inferences that might be drawn from the evidence." State v. Dooley, 313 Kan. 815, 819, 491 P.3d 1250 (2021). Under K.S.A. 60-460, the general rule is that "[e]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible." However, subsection (d) makes exceptions for contemporaneous statements and statements admissible on the ground of necessity. Subsection (d)(2) provides an exception for excited utterances, which are statements made "while the declarant was under the stress of a nervous excitement caused 6 by such perception." And finally, under the necessity/unavailable declarant exception in subsection (d)(3), hearsay is admissible "if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort." K.S.A. 60-460(d). Here, we need go no further than hold that the statement was admissible as an excited utterance. Banks argues there was "nothing showing that the event was sufficiently startling and that [Cavitt] made the statement under the stress of the startling event." But factual findings supporting admission of a hearsay statement are reviewed for substantial evidence. And under substantial evidence review, we cannot say that the judicial ruling was an unreasonable determination of the facts. The requirements for admitting a statement under the excited utterance exception are as follows: "'1. An event or condition occurred. 2. It was startlingly sufficient to cause nervous excitement. 3. The declarant perceived it. 4. The declarant made the statement while under stress of nervous excitement.'" State v. Mattox, 305 Kan. 1015, 1033-34, 390 P.3d 514 (2017). The district court correctly stated this standard and then made the following ruling: "[T]he event that we're talking about is the statement of [Cavitt] that pays tribute to [Banks] that starts the fight. The—I mean, it's clear that the statement was made in—at the beginning of—while Ms. Banks and Ms. Cavitt were engaged in the verbal portion of the fight. It is—Ms. Cavitt is yelling, you know, this is—basically makes a contemporaneous statement as to what's going to cause the physical fight, why she is asking Ms. Banks to square up and participate in this fight." Thus, contrary to Banks' argument, there is evidence of a startling event and nervous excitement. The district court found that Cavitt was yelling in response to being confronted by a gun. The district court did not abuse its discretion when it found that 7 Cavitt experienced an event sufficient to cause nervous excitement and made a statement while under the influence of nervous excitement. This result is consistent with our prior caselaw. In State v. Brown, 285 Kan. 261, 173 P.3d 612 (2007), abrogated on other grounds by State v. Williams, 306 Kan. 175, 392 P.3d 1267 (2017), this court held all statements by a declarant admissible under the excited utterance exception, except for a double hearsay statement that lacked foundation. Brown, 285 Kan. at 266. This court ultimately surmised that "[t]ime is not the indicia of reliability underlying the excited utterance exception; rather the sense of excitement or stress that vitiates the opportunity for reflection makes the statement spontaneous and reliable." The court concluded that the statements not subject to another level of hearsay were admissible because "the declarant was visibly tearful, distraught, and in a state of panic. . . . There is nothing, including the lapse of time, that would indicate the statements were anything but spontaneous." 285 Kan. at 295-96. Conversely, in State v. Rowe, 252 Kan. 243, 843 P.2d 714 (1992), this court affirmed either dismissal of criminal complaints or the grant of motions in limine to exclude hearsay evidence in four cases. 252 Kan. at 243-44. All four of the consolidated cases involved a deceased informant who had conducted controlled drug purchases for law enforcement. The State tried to admit recordings or transcripts from the alleged buys, the reports prepared by the informant following each buy, and conversations between the informant and officers. 252 Kan. at 244-45. After determining that the statements were all hearsay, the court examined whether any of the exceptions under K.S.A. 1991 Supp. 60- 460(d) applied. As applicable here, this court found that the excited utterance exception did not apply because "the State has made no showing in the record that any of the events were 'startlingly sufficient to cause nervous excitement.'" 252 Kan. at 250. The informant was a drug user and accustomed to making drug buys—there was no indication that any of his statements were excited utterances. 252 Kan. at 250. 8  Here, there was sufficient evidence under substantial evidence review to admit the statement as an excited utterance, so we need not address the parties' arguments under the other exceptions. Defense Exhibit K At trial, Banks sought to admit a report that found officers in an unrelated case who had fired at a moving vehicle used reasonable force. Banks argued that this evidence went to whether an objective person in her position would have felt it necessary to fire at the vehicles. The State objected, arguing that that situation was "completely different" and that all the report would do is offer an improper legal opinion and confuse the jury with unrelated facts. The district court sustained the objection and held that the report was an "apples to orange comparison that . . . would serve no useful purpose for the jury." Banks now argues that the evidence was relevant to the objective component of self-defense, and that any dissimilarities between the officer shooting and the current one are fodder for cross-examination, rather than reasons to exclude the evidence. The State argues that "[t]he District Attorney's determination that one shooting was justified is in no way probative in determining whether another shooting, involving different circumstances, was also justified." The State argues in the alternative that any error was harmless. This court applies the following standard for relevance: "'[A]ll relevant evidence is generally admissible.' K.S.A. 60-407(f). Relevant evidence is 'evidence having any tendency in reason to prove any material fact.' K.S.A. 60-401(b). Relevance has two components: materiality and probative value. 'A material fact is one 9  that has some real bearing on the decision in the case,' and probative evidence tends to prove any material fact." State v. Hogan, 321 Kan. 27, 38, 573 P.3d 207 (2025). This court generally reviews materiality determinations de novo and probative determinations for an abuse of discretion. State v. Knox, 301 Kan. 671, 688, 347 P.3d 656 (2015). "When a criminal defendant claims that a district court interfered with his or her constitutional right to present a defense, this court reviews the issue de novo." State v. Seacat, 303 Kan. 622, 638, 366 P.3d 208 (2016). K.S.A. 21-5222(a) provides that "[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." In Exhibit K, the District Attorney for the 18th Judicial District reviewed the use of force by the Wichita Police Department where the decedent had fled law enforcement, striking the vehicle of one officer before accelerating towards another officer, who opened fire, shooting the decedent three times. Banks relies on two prior bad acts cases to argue for admission of Exhibit K. The first is State v. Boysaw, 309 Kan. 526, 439 P.3d 909 (2019), which involved admission into evidence of a prior conviction of sexual assault of a child from 1987 in a case regarding aggravated indecent liberties with a child. 309 Kan. at 527-28, 538-39, 542. The second is State v. Higgenbotham, 271 Kan. 582, 23 P.3d 874 (2001), where this court affirmed the allowance of a prior conviction as admissible to prove identity, intent, and plan when there were many similarities between the murder victims. 271 Kan. at 588-90. It is a bridge too far, however, to bring in the prior actions of completely different actors. Whether police officers were justified in using deadly force in attempting to arrest an individual is not relevant to this case as a factual matter. This report is essentially a legal opinion masquerading as evidence. Analogizing to legal precedent is the province 10 of the courts, not the jury. See K.S.A. 22-3403(3) ("When the trial is to a jury, questions of law shall be decided by the court and issues of fact shall be determined by the jury."). The district court did not err in excluding Exhibit K. Imperfect Self-Defense for Felony Murder At trial, defense counsel argued imperfect self-defense should be allowed as to the felony murder charge because "it's just a different self-defense" and thus, "I think that should be either a voluntary manslaughter, but I think it's more appropriate, an involuntary manslaughter, because that's an unintentional killing like felony murder, but it's done in an imperfect self-defense. So I would be arguing for involuntary manslaughter . . . ." The district court declined the request, reasoning that it was not legally appropriate because there are no "lower tiers" to felony murder. "Appellate courts follow a multi-step process when analyzing jury instruction challenges: (1) determine whether the issue is preserved for appeal; (2) examine whether the instruction was factually and legally appropriate; and, if the court finds error, (3) conduct a reversibility inquiry." State v. Thille, 320 Kan. 435, 437, 570 P.3d 18 (2025). K.S.A. 21-5402(a)(2) defines as murder in the first degree any killing "in the commission of, attempt to commit, or flight from any inherently dangerous felony." K.S.A. 21- 5402(d) further explains that "there are no lesser included offenses of murder in the first degree under subsection (a)(2)." Banks now argues that instructions for voluntary and involuntary manslaughter based on imperfect self-defense were legally and factually appropriate, and thus the district court erred in not giving the instructions. The State argues that there are no lesser included offenses for felony murder. The State argues in the alternative that any such instruction was not factually appropriate, or that any error was harmless. 11  Banks' argument is legally incorrect. This court has clearly held "self-defense is never a defense to felony murder. A self-defense instruction may only be given in felony- murder cases to the extent it may negate an element of the underlying inherently dangerous felony." State v. Milo, 315 Kan. 434, Syl. ¶ 1, 510 P.3d 1 (2022). As applied here, the underlying inherently dangerous felony is criminal discharge of a firearm. Imperfect self-defense is not a lesser included crime of criminal discharge, and if that were the stand-alone charge, the instruction would not be legally appropriate. It follows, therefore, that a claim of imperfect self-defense does not negate the underlying dangerous felony. As we noted in State v. Kirkpatrick, "imperfect self-defense exists only as a lesser degree of the crime of homicide. Outside of homicide law, the concept [of imperfect self- defense] doesn't exist . . . With respect to all other crimes, the defendant is either guilty or not guilty. . . . There is no in between. [Internal quotation marks omitted.]" 286 Kan. 329, 339, 184 P.3d 247 (2008), abrogated on other grounds by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013), and abrogated on other grounds by State v. Barlett, 308 Kan. 78, 418 P.3d 1253 (2018). See also State v. Holley, 315 Kan. 512, 520, 509 P.3d 542 (2022) ("[T]he crime of aggravated robbery, while inherently dangerous, does not include any element that could be justified by using force in defense of oneself or another, and therefore cannot be negated by a claim of self-defense. Given this, a self-defense instruction was not legally appropriate."). Admittedly, Kirkpatrick was decided before we clarified our decision-making on when self-defense is available when a defendant is charged with felony murder. And much of Kirkpatrick is no longer good law. But we reiterated the limitations of self- defense in Milo using the following illustration, which is applicable here: "[S]ome crimes contain an element—the use of force—which may be negated by a proper claim of self-defense. One example is the inherently dangerous felony of criminal discharge of a firearm. The elements of that crime include that the defendant discharged a firearm, and that it was directed either at a dwelling or a vehicle in which there was a 12  human being present. If the act of shooting that constitutes the criminal discharge was done in an act of self-defense, then self-defense should be available to the defendant. "On the other hand, many crimes do not require the use of force at all to satisfy all elements. With regard to these crimes, self-defense is legally inappropriate. When there is no use of force to be legally justified, self-defense is simply a non sequitur. [Citations omitted.]" (Emphasis added.) Milo, 315 Kan. at 444. Kirkpatrick's discussion on imperfect self-defense thus dovetails nicely with our clarified framework: "If imperfect self-defense is asserted to the crime of criminal discharge of a firearm at an occupied dwelling, as argued in this case, voluntary and involuntary manslaughter are not mitigated versions of that offense. There is no imperfect self- defense version of criminal discharge of a firearm at an occupied dwelling. Thus, imperfect self-defense is not a defense to criminal discharge of a firearm." Kirkpatrick, 286 Kan. at 340. Considering the holdings of Kirkpatrick and Milo together, we can readily conclude that imperfect self-defense is not available here as a matter of law. When the underlying felony in a felony murder is criminal discharge of a firearm, only pure self-defense is available as a defense. Imperfect self-defense is not available and such an instruction would be legally inappropriate. The district court correctly held that voluntary manslaughter and involuntary manslaughter lesser included offenses were legally inappropriate as to the felony murder charge. Lesser Included Offense of Involuntary Manslaughter for Attempted First-Degree Murder Banks ultimately did not request an attempted involuntary manslaughter instruction as to the attempted murder charge. Banks now argues that the court's failure to give the attempted involuntary manslaughter instruction was clear error. The State argues 13 that the invited error doctrine should preclude defendant's challenge, that the instruction was not factually warranted, and that any error was harmless. The State also argues that this court should reconsider its view that invited error should only apply when counsel's actions induce an error, but we decline that invitation. Whether the doctrine of invited error applies is a question of law subject to unlimited review. State v. Slusser, 317 Kan. 174, 179, 527 P.3d 565 (2023). In the context of jury instructions, a mere failure to request an instruction does not trigger invited error. The doctrine's application turns on whether an instruction would have been given but for an affirmative request to the court for the outcome later challenged on appeal. The ultimate question is whether the record reflects that the defense's action in fact induced the court to make the now-claimed error. State v. Peters, 319 Kan. 492, 516, 555 P.3d 1134 (2024). Here, the entirety of the exchange between defense counsel and the court was as follows: "[Defense Counsel]: . . . I do want to request this at this time. Since it's a self- defense case, I mean, there's an argument, the imperfect self-defense, be it voluntary or involuntary, as a lesser included. They may think that she subjectively believed that she needed to shoot and kill, but that the manner in which she did it was unreasonable. So that's imperfect self-defense. "[District Court]: What's your thought on that, [prosecutor]? .... "[Prosecutor]: While we're talking about it, I think I heard [Defense Counsel] say attempted involuntary manslaughter. 14  "[Defense Counsel]: Yeah. I know that [she] can't have a specific—I know [she] can't have attempted involuntary manslaughter. I misspoke on that one. "[Prosecutor]: Okay. "[Defense Counsel]: It should be attempted voluntary, because you can't specifically intend to commit an unintentional act. "[District Court]: Yeah. "[Prosecutor, based on context of transcript]: I agree with that. "[District Court]: All right. Okay." This exchange shows that defense counsel did not induce the district court's error. Defense counsel was about to request an attempted involuntary manslaughter instruction, then declined to do so. There is no evidence that the district court would have included the instruction but for defense counsel's belief as to the legal appropriateness of the instruction. See State v. Barnes, 320 Kan. 147, 175-76, 563 P.3d 1255 (2025) (finding no invited error when defense counsel stated "[w]e came to the agreement Mr. Barnes doesn't want me to request lessers. I'm not so sure there are anyhow, but he has asked me to not ask for any lesser-included" and the court made its own determination that the evidence did not comport with giving a lesser-included). Having determined our review is not barred by the invited error doctrine, we examine whether the district court should have given the unrequested instruction. We again apply our familiar framework for analyzing jury instructions: "(1) determine whether the issue is preserved for appeal; (2) examine whether the instruction was factually and legally appropriate; and, if the court finds error, (3) conduct a reversibility inquiry." Thille, 320 Kan. at 437. Furthermore, "[a]t the second step, appellate courts consider whether the instruction was legally and factually appropriate, using an unlimited 15 standard of review of the entire record." State v. Hollins, 320 Kan. 240, 242, 564 P.3d 778 (2025). In determining whether an instruction is factually appropriate, courts "must determine whether there was sufficient evidence, viewed in the light most favorable to the requesting party, that would have supported the instruction." State v. Mendez, 319 Kan. 718, 727, 559 P.3d 792 (2024). When a party fails to request a jury instruction before the district court, an appellate court reviews for clear error under K.S.A 22- 3414(3). "Clear error exists when the court is firmly convinced the outcome would have been different had the instruction been given." State v. Moore, 319 Kan. 557, 570, 556 P.3d 466 (2024). The State does not dispute that an attempted involuntary manslaughter instruction was legally appropriate. And our independent examination of the law indicates the instruction was legally appropriate. See State v. Pulliam, 308 Kan. 1354, 1364, 430 P.3d 39 (2018) ("The language of the imperfect self-defense involuntary manslaughter statute no longer explicitly requires a killing to be 'unintentional.'"); State v. Gentry, 310 Kan. 715, 721, 449 P.3d 429 (2019) ("[S]econd-degree murder, voluntary manslaughter, and involuntary manslaughter are lesser included offenses of first-degree premeditated murder."); K.S.A. 21-5405(a)(4) ("Involuntary manslaughter is the killing of a human being committed . . . during the commission of a lawful act in an unlawful manner."). Turning next to factual appropriateness, Banks argues that there is some evidence that Banks intended to commit a lawful act but that she used excessive force. Banks testified that she saw a car coming towards her, that she fired at that car, and then she fired at the second car. The jury could have determined that force was necessary, but that firing into the vehicles was excessive. The State initially argues that this court should not construe the facts in the light most favorable to the defendant when she did not request the instruction at trial. The State relies on State v. McCullough, 293 Kan. 970, 270 P.3d 1142 (2012), State v. Williams, 16 295 Kan. 506, 286 P.3d 195 (2012), and State v. Pulliam. The State also asserts that even if we construe the record in the light most favorable to Banks, the instruction was not factually appropriate and that any error was harmless. In McCullough, we used the following language when describing our review of a self-defense instruction that was not previously requested at the district court: "But a different standard applies to McCullough's newly asserted claim that a self-defense instruction should have been given under a defense-of-others theory. Appellate courts review a district court's failure to give an instruction for clear error when the complaining party did not request an instruction or object to its omission." 293 Kan. at 975. This court, unsurprisingly, clarified statements like these in Williams, noting that "clearly erroneous" is not a standard of review and that clear error instead provides the standard by which the court decides if a mistake at trial requires reversal: "Only after determining that the district court erred in giving or failing to give a particular instruction would the reviewing court engage in the reversibility inquiry." Williams, 295 Kan. at 515-16. See also State v. Waldschmidt, 318 Kan. 633, 661-62, 546 P.3d 716 (2024) ("Williams explained the obvious—to decide whether an unpreserved instructional issue qualifies as clear judicial error under K.S.A. 2022 Supp. 22-3414[3], an appellate court must decide first whether there was even a mistake. Only then would a court take the next step to decide whether that mistake was serious enough to meet the demanding clearly erroneous standard."). The Williams court further stated that in examining whether a different result would have occurred, the court conducts a review of the entire record and makes a de novo determination. Nevertheless, the burden to show clear error remains on the defendant. 295 Kan. at 516. The court went on to say, however, that Williams' previously unrequested "defense of dwelling instruction" was 17  "so far from reaching [the clearly erroneous standard] that we will make short work of this issue. "Simply put, Williams' dwelling was not under attack. Her argument is that because she had told Jones that he and Kelly could no longer stay at her house, Kelly's status transformed from a houseguest to a trespasser. Therefore, the argument continues, Williams could use force to prevent Kelly from remaining in the dwelling. If Williams wanted to be creative in crafting an argument that would have justified the giving of the defense of dwelling instruction, she should have done so in the district court. We will certainly not require trial judges to divine unique defense theories, especially where such theories are not revealed by the evidence." 295 Kan. at 520. Fast forwarding to Pulliam, we said, "'[I]f that defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant.'" 308 Kan. at 1361-62. The State argues this statement implies that the "light most favorable" should only apply when a defendant requests an instruction at trial. But Pulliam is not implying that if a defendant fails to request an instruction at trial, the record is not construed in the light most favorable to the defendant on appeal. Rather, that language, when traced back, is just referring to the classic rule that the record is construed in favor of the party requesting the instruction, whether that be the State or the defendant—in Pulliam that was the defendant. See State v. Anderson, 287 Kan. 325, 331, 197 P.3d 409 (2008) ("'[T]his court reviews the evidence in the light most favorable to the party requesting the instruction when considering the district court's refusal to give a requested instruction.'"). In State v. Turner, 318 Kan. 162, 542 P.3d 304 (2024), we declined to address this precise argument because the State did not raise it before the Court of Appeals. But in so doing, we noted that "the State did not ask the panel to . . . depart from the line of caselaw explaining that evidence is reviewed in a light most favorable to the defendant 18 without distinguishing between requested and unrequested instructions." 318 Kan. at 168. Here, even the remainder of the State's choice of caselaw explains away the State's arguments. First, the State seemingly concedes that any favorable language in McCullough is undermined by Williams. Williams itself is also easily explained—the language is imprecise because old habits die hard. We had just explained that "clearly erroneous" was not a standard of review but then used some of that older language when rejecting an argument on appeal. But the court's current framework explains the result in Williams— any mistake in failing to give the defense of dwelling instruction was not clear error because the court was most firmly not convinced the instruction would have changed the result of the case. The State thus provides no examples of an appellate court refraining from construing the facts in the light most favorable to a defendant because the defendant failed to request the instruction below. Yet we have construed the facts in the light most favorable to the defendant in evaluating factual appropriateness of an unrequested instruction before. For example, in State v. Chavez, 310 Kan. 421, 447 P.3d 364 (2019), the defendant failed to request the instruction he sought on appeal, but this court nevertheless articulated its now well-established standard: "'[T]he progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and 19  degree of certainty set forth in Ward.'" (Emphasis added.) 310 Kan. at 430 (quoting State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 [2012]). In arguing against our framework, the State sugg