State v. Finley

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 128,206 STATE OF KANSAS, Appellee, v. ZARRELL SEMAJ FINLEY, Appellant. SYLLABUS BY THE COURT 1. A voluntary intoxication instruction is not factually appropriate when the evidence establishes only that the defendant consumed an intoxicating substance, without sufficient evidence that the resulting impairment affected the defendant's ability to form the requisite intent to commit the charged crime. 2. A heat of passion voluntary manslaughter instruction is not factually appropriate merely because a sudden quarrel or physical altercation preceded the killing; the evidence must establish legally sufficient provocation that would cause a reasonable person to lose self-control and act from extreme emotion rather than reason. 3. An imperfect-defense voluntary manslaughter instruction under K.S.A. 21-5223(b) is not factually appropriate unless the circumstances the defendant honestly believed existed, if true, would have justified the use of deadly force to prevent or terminate an unlawful entry into or attack upon an occupied vehicle. 1 4. A prosecutor does not exceed the wide latitude afforded during closing argument by commenting on the evidence and drawing reasonable inferences from that evidence, so long as the argument accurately reflects the evidence and does not improperly appeal to the passions or prejudices of the jury. 5. A prosecutor commits error by referring during closing argument to facts not admitted into evidence, but such error does not require reversal if the State establishes beyond a reasonable doubt that there is no reasonable possibility the error contributed t o the verdict. 6. When multiple prosecutorial errors occur during closing argument, an appellate court must consider their cumulative effect and determine whether the State has established beyond a reasonable doubt that the combined errors did not contribute to the verdict. 7. Premeditation is the process of thinking about a proposed killing before engaging in the homicidal conduct. It requires a period, however brief, of thoughtful, conscious reflection and pondering—done before the final act of killing—that is sufficient to allow the actor to change his or her mind and abandon his or her previous impulsive intentions. Appeal from Johnson District Court; MICHAEL P. JOYCE, judge. Oral argument held September 17, 2026. Opinion filed November 6, 2026. Affirmed. James M. Latta, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant. 2  Daniel G. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Kris W. Kobach, attorney general, were with him on the brief for appellee. The opinion of the court was delivered by STANDRIDGE , J.: This is Zarrell Semaj Finley's direct appeal following his convictions for first-degree premeditated murder and criminal possession of a weapon by a convicted felon. Finley seeks reversal of his murder conviction, alleging multiple trial errors. He argues the district court erred in instructing the jury, the prosecutor committed reversible error during closing argument, and there was insufficient evidence of premeditation to support his first-degree murder conviction. For the reasons discussed below, we affirm Finley's conviction for first-degree premeditated murder. The district court properly instructed the jury; the prosecutor's comments during closing argument, if erroneous, were harmless and do not warrant reversal; and there was sufficient evidence of premeditation to support Finley's conviction for first-degree murder. FACTUAL BACKGROUND On the afternoon of July 31, 2022, law enforcement was dispatched to a reported shooting in the parking lot of a BP gas station at the intersection of College Boulevard and Antioch Road in Overland Park. Upon arrival at the scene, officers discovered a Black male lying face down in the parking lot near the first row of gas pumps. The man was alive but bleeding profusely and had a large gaping wound at the base of his neck and upper back. Officers located the man's wallet and driver's license, which identifi ed him as Shaquille Jackson. There were no weapons at the scene or on Jackson's person. Jackson was transported to the hospital, where he later died from multiple gunshot wounds. 3  Law enforcement collected surveillance video from the BP. The gas station had 16 security cameras, including one facing the gas pumps. The relevant video from this camera is from July 31, 2022, and begins around 4 p.m. The video lasts about 23 minutes and has no audio. It shows a white Chevy Cruze and a white Toyota Highlander arriving at the BP together and pulling up to neighboring gas pumps. Jackson exits the rear passenger door of the Highlander and is carrying a backpack. At the same ti me, another man—later identified as Finley—exits the front passenger door of the Highlander. Two other individuals appear in the video: Anthony McBride, the driver of the Highlander; and Kamri Bryant, the driver of the Cruze. Jackson gets into the front passenger seat of the Cruze. Meanwhile, Finley approaches the driver's door of the Highlander and engages with McBride while retrieving a bottle of what appears to be liquor and taking a sip. Finley then walks over to the front passenger door of the Cruze, leans inside, and bends down next to the passenger door. After he stands up, Jackson gets out of the Cruze holding the backpack in front of him, and the two men appear to be talking and laughing. They also look inside the backpack as Jackson continues to hold it. Bryant then starts putting gas into the Cruze and for the next several minutes, the men interact with Bryant, help her pump gas, and engage with McBride, who is still sitting in the driver's seat of the Highlander. During this time, Jackson continues to hold the backpack in his arms and Finley takes another sip from the liquor bottle. Jackson then straps the backpack to his back, and he and Finley move to the passenger side of the Cruze. McBride gets out of the Highlander to join the group; they all stand around the Cruze talking for a few minutes, and Finley and Jackson each take a sip from the liquor bottle. As the group continues to talk, Jackson puts an arm around Finley's shoulders. After letting go, Jackson is talking and taps Finley's chest with his arm. Finley suddenly lunges at Jackson and tries to grab the backpack off his shoulder. The two men wrestle , 4 wrapping their arms around each other as McBride tries to intervene. Jackson gets Finley into a headlock; when they disengage, Finley has possession of the backpack and walks toward the Highlander with it. He then pulls an AK-47 out of the backpack and approaches Jackson with the gun pointed at him. Finley briefly lowers the gun, raises it again, and fires multiple times at Jackson, who falls to the ground. Still holding the gun, Finley picks up the backpack and gets into the driver's seat of the Highlander. McBride follows, entering the passenger seat. Finley quickly drives away and is followed by Bryant driving the Cruze, leaving Jackson bleeding and writhing on the ground next to the gas pump. Law enforcement managed to follow the Highlander's path through Overland Park's traffic camera footage for about 5 miles into Leawood. Law enforcement's investigation led them to identify everyone in the video, including Finley as the shooter. Finley, accompanied by his attorney, later agreed to speak to Detective Shannon Armstrong. Finley gave the following version of events. Finley drank alcohol, including tequila, almost continuously in the 24 hours before the shooting. The night before, he drank until he blacked out and then started drinking again as soon as he woke up the next morning. Later that day, Finley and McBride met up with Jackson and Bryant to go to a party. While Jackson and Finley rode in the Highlander together, Jackson showed Finley a small black handgun that he pulled from his waistband. Finley knew that Jackson often carried a gun. Finley also showed Jackson the gun he carried in his backpack. Finley's money was also inside the backpack. Finley had the gun because he had previously been shot three times. Finley agreed to let Jackson hold the gun and did not ask for it back because he did not want Jackson to ge t mad. At the gas station, Jackson took Finley's backpack, with the gun inside, to Bryant's car. When Finley wanted it back, Jackson became aggressive and pushed him. Finley thought Jackson was going to pull the gun on him because the backpack was open, so Finley tried to remove the backpack from Jackson's shoulders and they began wrestling. 5 Once Finley got a hold of the backpack, he rushed to get into the Highlander. He heard Jackson coming up behind him in an aggressive manner and heard Jackson say he was going to "park that jeep," meaning he was going to shoot up the jeep. Finley did not kn ow if Jackson had his gun out and did not have much time to think, so Finley pulled his gun out of the backpack to defend himself. Finley pointed his gun at Jackson to scare him, yelling at him to walk away. Finley saw Jackson's arm move and thought he was "pulling something out," so Finley panicked and tried to shoot at Jackson's leg. But Finley lost control of the gun and "it went all the way up." After the shooting, Finley was scared and ran back to the Highlander and drove to the house where he was staying. Finley knew he was probably not going to be able to see his son for a long time, so he wanted to spend a couple of days with him and then planned to turn himself in. The next day, Finley threw the AK-47 off a bridge into a body of water between North Kansas City and downtown. Finley expressed remorse for shooting Jackson, who he had known for two to three years and considered a friend. After learning that Jackson was not found with a gun, Finley claimed he found Jackson's gun in his backpack and threw it into the water along with the AK-47. The State charged Finley with first-degree premeditated murder and criminal possession of a weapon by a convicted felon. Before trial, Finley pled guilty to the criminal possession charge. The case proceeded to trial on the first-degree murder charge, where the State presented the evidence outlined above, including the BP surveillance video and an audio recording of Finley's interview with Detective Armstrong. Finley did not testify but defended on theories of self-defense and lack of premeditation. The sole witness to testify for the defense was Finley's sister, Zenovia Morris. She testified that the AK-47 belonged to her and that she had purchased it for her family's protection because she and other members of her family had been shot before. 6 Morris said that Finley usually carried the firearm "for protection." Morris also testified that she owned the Highlander and that Finley had borrowed it the night before the shooting. The next day, she texted and called Finley to ask where the Highlander was. When Finley answered Morris' call, he seemed intoxicated and told her that he was coming home after going to a "day brunch, drinking party." Morris said that McBride returned the vehicle to her later that day, and she found Finley drunk and asleep in the back seat. Morris claimed she had to carry Finley inside because he would not wake up. On cross-examination, Morris could not recall the date of the shooting or what time Finley had returned to her house on that date. The jury convicted Finley of first-degree premeditated murder. The district court imposed a hard 50 life sentence for the murder conviction and a concurrent 11 -month prison term for the criminal possession conviction. Finley directly appealed his convictions to this court. Jurisdiction is proper. See K.S.A. 60-2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A. 22-3601); K.S.A. 22-3601(b)(3)-(4) (life sentence and off-grid crime cases permitted to be directly taken to Supreme Court); K.S.A. 21-5402(b) (first-degree murder is off-grid person felony). ANALYSIS On appeal, Finley makes several arguments that may be consolidated into the following issues: (1) the district court committed reversible error by instructing or failing to instruct the jury in three respects, (2) the prosecutor's erroneous comments during closing argument warrant reversal, and (3) the evidence was insufficient to support his conviction for first-degree premeditated murder. We address each argument in turn. 7 I. Jury Instructions At trial, the district court instructed the jury on three lesser included offenses of premeditated first-degree murder: intentional second-degree murder, voluntary manslaughter under the "unreasonable but honest belief" theory of that offense, and reckless involuntary manslaughter. The court declined Finley's request to instruct the jury on voluntary intoxication and heat of passion voluntary manslaughter. On appeal, Finley raises three claims of instructional error based on the district court's (1) refusal to instruct the jury on voluntary intoxication, (2) refusal to instruct the jury on heat of passion voluntary manslaughter, and (3) failure to instruct t he jury on voluntary manslaughter based on defense of an occupied vehicle. A. Standard of Review We follow a multi-step framework when addressing claims of instructional error. First, we consider whether the issue is reviewable; in other words, whether there is appellate jurisdiction and whether the issue is sufficiently preserved for our review. Second, we decide whether the challenged instruction was legally and factually appropriate. In doing so, we exercise unlimited review of the entire record and view the evidence in the light most favorable to the requesting party. Third, upon a finding of error, we determine whether that error requires reversal or can be considered harmless. State v. Holley, 313 Kan. 249, 253, 485 P.3d 614 (2021). Whether a party has preserved the jury instruction issue at the first step affects an appellate court's reversibility inquiry at the third step. State v. Peters, 319 Kan. 492, 515- 16, 555 P.3d 1134 (2024). We generally use the applicable harmless -error test if the party 8 requested the instruction or objected to its omission below and the clear -error test if they did not. See K.S.A. 22-3414(3); Holley, 313 Kan. at 256-57; State v. Mendez, 319 Kan. 718, 727-28, 559 P.3d 792 (2024). B. Voluntary Intoxication Finley argues the district court committed reversible error in denying his request for a voluntary intoxication instruction. The State does not dispute that such an instruction would have been legally appropriate but contends that it was not factually appropriate because there was no evidence presented at trial to establish that Finley was so impaired he could not form the requisite intent to commit the crime of premeditated first-degree murder. In the alternative, the State argues that any error by the cou rt in failing to give the requested instruction was harmless. At the first step of our jury instruction analysis, Finley requested the instruction and thus preserved this issue for our review. At the second step, the instruction would have been legally appropriate because voluntary intoxication may negate the intent element of a specific intent crime, and first - degree premeditated murder is a specific intent crime. State v. Gallegos, 313 Kan. 262, 271, 485 P.3d 622 (2021); see State v. Bobian, 321 Kan. 169, 176, 574 P.3d 385 (2025) ("[V]oluntary intoxication . . . can negate the intent element required for specific intent crimes such as premeditated first-degree murder."). Thus, the relevant question before us is whether a voluntary intoxication instruction would have been factually appropriate. K.S.A. 21-5205(b) provides: 9  "An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind." A voluntary intoxication defense under K.S.A. 21-5205(b) requires proof of both consumption of an intoxicating substance and consequent impairment. Thus, a district court should instruct on voluntary intoxication when "'the evidence, viewed in the light most favorable to [the defendant], shows that [the defendant] was intoxicated to the extent that his [or her] ability to form the requisite intent was impaired.'" Bobian, 321 Kan. at 176; see K.S.A. 21-5108(c) ("A defendant is entitled to an instruction on every affirmative defense that is supported by competent evidence."). We will not infer impairment based on evidence of consumption alone, but "'[a] loss of memory or inability to remember events before or during the offense may establish the inability to form intent,'" in addition to evidence that the defendant is "'so impaired that he or she has lost the ability to reason, to plan, to recall, or to exercise motor skills as a result of voluntary intoxication.'" 321 Kan. at 176 (quoting State v. Green, 311 Kan. 960, 985, 469 P.3d 1228 [2020]). On the other hand, "'[a] defendant's ability to recall the circumstances surrounding the charged crime and provide a coherent narrative of his or her conduct undercuts a claim of intoxication sufficient to warran t a jury instruction.'" Gallegos, 313 Kan. at 271-72 (quoting State v. Davis, 306 Kan. 400, 414-15, 394 P.3d 817 [2017]). There was sufficient evidence presented at trial establishing that Finley consumed alcohol before killing Jackson. He told law enforcement that the night before the shooting, he drank until he passed out and then resumed drinking in the morning. And the BP surveillance video shows Finley drinking from a bottle of liquor in the minutes before the shooting. 10  The real issue is whether the evidence supported a finding of impairment. At the instructions conference, defense counsel argued that Finley's impairment was demonstrated by the fact that McBride had taken over driving at some point after leaving the gas station "because [Finley] can't drive and they have to help him." The district court disagreed with this characterization of the evidence, reminding counsel, "The evidence was that [Finley's] sister found him in the back seat asleep" but there was no evidence as to how and when McBride had started driving. Defense counsel replied, "Good point." The court ultimately denied counsel's request for a voluntary intoxication instruction on grounds that it was not factually appropriate because there was no evidence that Finley was impaired or otherwise "struggling physically in any way throughout this whole process." The court also explained that "[j]ust because [Finley] was asleep in the car when his sister found him who knows when, who knows how long after the events—this occurred—all she said was it was in the afternoon. So potentially she confused the date as to when this—when he— when she saw him in the back of the car, because this occurred at about 4:20 in the afternoon." Finally, the court noted that Finley's claim of impairment was undercut by his "incredible narrative to the detective, remembering everything that occurred." Finley challenges the district court's ruling, claiming the following evidence showed he was too impaired to form the necessary intent to commit premeditated murder: • he drank alcohol continuously in the 24 hours before the shooting; • when Morris called Finley on the day of the shooting, he was slurring his speech and "seemed intoxicated"; 11  • McBride drove the Highlander to Morris' residence because Finley was drunk and had passed out in the back seat; and • Morris had to carry Finley inside because he would not wake up. Finley's argument is unpersuasive. As discussed, we will not infer impairment based on evidence of consumption alone. Bobian, 321 Kan. at 176. And Morris' testimony does not provide proof that Finley was impaired at the time of the shooting. Although Morris said the events she testified to occurred on the same day as the shooting, she also admitted that she could not recall the date of the shooting or what time Finley had returned to her house on that day. But even if we accept Morris' testimony as true, there is no evidence that her phone conversation with Finley took place before he shot Jackson, how much time had passed between the shooting and when McBride returned the Highlander, or when Finley stopped driving and passed out in the back seat of the Highlander. Defense counsel agreed there was no evidence as to how and when McBride had started driving. Simply put, Morris' testimony does not support Finley's claim of impairment. Nor does the BP surveillance video. In the video, Finley displayed no serious loss of motor skills or coordination; he retrieved and handled the AK-47 with no apparent difficulty; and, as captured by traffic camera footage, he drove away from the BP without exhibiting any obvious signs of erratic driving other than speeding. The traffic camera footage does not show the Highlander pulling over to switch drivers. Finley's claim of impairment is further undermined by his interview with law enforcement where he provided a detailed narrative of the events before, during, and after the shooting, as well as his justification for the shooting. This court has affirmed district courts' refusals to issue voluntary intoxication instructions where the defendant consumed alcohol but could perform normal activities, 12 execute a plan, and narrate events. See, e.g., Gallegos, 313 Kan. at 272 (no evidence of impairment where defendant worked, arranged a meeting with victim, drove to the meeting, engaged in sexual activity with victim, and later had ability to recall and provide a coherent narrative of these events); State v. Morris, 311 Kan. 483, 490-91, 463 P.3d 417 (2020) (little to no evidence of impairment where defendant could walk and talk, understood and participated in interrogation of victim, and provided coherent narrative of what he did and why he did it); State v. Kidd, 293 Kan. 591, 596, 265 P.3d 1165 (2011) (no impairment where evidence showed defendant was merely "'buzzed'" and not drunk, and that he was communicating and playing video games with victim immediately before shooting victim); compare Bobian, 321 Kan. at 176-79 (district court erred in refusing to instruct on voluntary intoxication where defendant gave a coherent narrative to detectives but also repeatedly said he "blacked out" before stabbing victim; instruction warranted despite the fact that defendant "accomplished many complicated feats before, during, and immediately after the period in which he claimed to have 'blacked out'"). In the minutes before the shooting, Finley walked around; talked and interacted with Jackson, McBride, and Bryant; pumped gas; wrestled with Jackson over the backpack; and retrieved and handled the AK-47. Afterward, he drove the Highlander away from the scene. Unlike the defendant in Bobian, Finley never claimed he blacked out or suffered memory loss in the moments before, during, or after the shooting. To the contrary, Finley answered the detective's questions about the shooting and provided a detailed and coherent narrative of the events and his justification for shooting Jackson. Viewing the evidence in the light most favorable to Finley, the record does not contain sufficient evidence to establish proof of impairment to the extent that he could not form the requisite intent to commit first-degree premeditated murder. Because a voluntary intoxication instruction was not factually appropriate, the district court did not err in refusing to issue the instruction. 13  C. Voluntary Manslaughter K.S.A. 21-5404(a) defines voluntary manslaughter as knowingly killing a human being "(1) [u]pon a sudden quarrel or in the heat of passion; or (2) upon an unreasonable but honest belief that circumstances existed that justified use of deadly force under K.S.A. 21-5222, 21-5223 or 21-5225, and amendments thereto." As discussed, the district court denied Finley's request to instruct the jury on heat of passion voluntary manslaughter but did instruct the jury under the "unreasonable but honest belief" theory of that offense, also known as imperfect self-defense. Finley argues the district court erred in two ways in instructing the jury on voluntary manslaughter. First, he alleges that a heat of passion instruction was warranted under the present facts. Second, he claims the court erred when it instructed the jury under the "unreasonable but honest belief" theory by failing to include language defining voluntary manslaughter under K.S.A. 21-5223, defense of an occupied vehicle. Under the first step of our jury instruction framework, Finley requested that the district court issue a heat of passion instruction. Because this issue is preserved for appeal, any error we identify is reversible only if we also determine the error was no t harmless. Holley, 313 Kan. at 254. But Finley did not request that the jury be instructed on defense of an occupied vehicle voluntary manslaughter, so any error we identify in this respect is reversible only if we are firmly convinced the jury would have reached a different verdict without the error. Mendez, 319 Kan. at 727-28. At the second step, both heat of passion and defense of an occupied vehicle voluntary manslaughter instructions would have been legally appropriate because voluntary manslaughter is a lesser degree of homicide when compared to the charged first-degree murder. State v. Thille, 320 Kan. 435, 438, 570 P.3d 18 (2025) (voluntary manslaughter instruction legally appropriate as lesser included offense of first -degree 14 murder); State v. Pulliam, 308 Kan. 1354, 1362, 430 P.3d 39 (2018) ("An instruction on a lesser included crime is legally appropriate."); see K.S.A. 21-5109(b)(1) (A lesser included crime includes a "lesser degree of the same crime."). The focus of our analysis is whether either instruction would have been factually appropriate. In general, an instruction on a lesser included offense is factually appropriate if "there is some evidence, viewed in a light most favorable to the defendant, e manating from whatever source and proffered by whichever party, that would reasonably justify the defendant's conviction for that lesser included crime." State v. Berkstresser, 316 Kan. 597, 601, 520 P.3d 718 (2022); see K.S.A. 22-3414(3) ("[T]he judge shall instruct the jury as to the crime charged and any such lesser included crime." [Emphasis added.]); State v. Williams, 295 Kan. 506, 521, 286 P.3d 195 (2012) ("[T]he giving of lesser included crime instructions is not a matter of discretion with the trial judge."). Thus, our resolution of this issue turns on whether there is some evidence that would reasonably justify a conviction of voluntary manslaughter under either a heat of passion theory or defense of an occupied vehicle theory. 1. Heat of Passion K.S.A. 21-5404(a)(1) defines voluntary manslaughter in relevant part as knowingly killing a human being "[u]pon a sudden quarrel or in the heat of passion." The language of the statute suggests that "a sudden quarrel" and "in the heat of passion" are two separate concepts, and Finley and the district court appeared to treat them as different ways in which to commit the crime. But this court has held that "a sudden quarrel is not separate and apart from heat of passion, but rather it is simply 'one form of p rovocation for "heat of passion."'" State v. Wade, 295 Kan. 916, 924, 287 P.3d 237 (2012) (quoting State v. Johnson, 290 Kan. 1038, 1047, 236 P.3d 517 [2010]). 15  The key elements comprising heat of passion voluntary manslaughter are an intentional killing and legally sufficient provocation. State v. Bernhardt, 304 Kan. 460, 475, 372 P.3d 1161 (2016). "'Heat of passion' is 'any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror,' based 'on impulse witho ut reflection.'" Thille, 320 Kan. at 439 (State v. Gentry, 310 Kan. 715, 722, 449 P.3d 429 [2019]); see PIK Crim. 4th 54.170 (2025 Supp.). "'The provocation whether it be "sudden quarrel" or some other form of provocation must be sufficient to cause an ordinary man to lose control of his actions and his reason.'" State v. Uk, 311 Kan. 393, 399, 461 P.3d 32 (2020) (quoting State v. Coop, 223 Kan. 302, 307, 573 P.2d 1017 [1978]); Gallegos, 313 Kan. at 269-70 (Words or gestures, even of the most offensive kind, are not legally sufficient provocation.). As this court has explained, "The metric of sufficient provocation is not the subjective belief of the defendant as to the danger facing him or her. Whether sufficient provocation exists requires an objective determination of whether a reasonable person would lose self -control under the facts presented such that the person acts from extreme emotion rather than reason." Thille, 320 Kan. at 443. Finley argues the jury could have found sufficient provocation existed here based on the "unforeseen angry altercation" over the backpack that turned into a physical fight immediately preceding the shooting. Finley's argument fails under an objective examination of the record. The BP video shows that after the brief struggle over the backpack, Finley walked away from Jackson; Jackson did not follow Finley. Although it appeared that the altercation had ended, Finley retrieved the AK-47 from the backpack and approached Jackson while pointing the gun at him. Finley briefly lowered the gun before raising it again and firing at Jackson multiple times. Additionally, Finley's current position is contradicted by his original description of the events—Finley told law enforcement that he shot Jackson in 16 self-defense because he feared being shot, not that a sudden quarrel drove him to lose control. Finley's actions and statements reflect a deliberate decision to shoot Jackson. See Thille, 320 Kan. at 443 (discussing the difference between a "sudden quarrel" and a defendant who acts with an imperfect self-defense state of mind). Under our objective standard, the altercation over the backpack is not provocation that would deprive a reasonable person of self-control, particularly where Finley had disengaged from the altercation and returned with a firearm. See, e.g., Uk, 311 Kan. at 398-99 (mere existence of a sudden quarrel immediately preceding homicide, without evidence of legally sufficient provocation, insufficient to warrant instruction on voluntary manslaughter); State v. Gallegos, 286 Kan. 869, 874-75, 190 P.3d 226 (2008) (voluntary manslaughter instruction unwarranted where defendant shot victim five times after a brief verbal exchange immediately before victim's death); State v. Clark, 263 Kan. 370, 374, 949 P.2d 1099 (1997) (no evidence of sudden quarrel where defendant claimed he shot victim because he thought victim was reaching for a gun); compare State v. Graham, 275 Kan. 831, 839, 69 P.3d 563 (2003) (heat of passion voluntary manslaughter instruction warranted where quarrel that immediately led to murder occurred suddenly and stabbing occurred during physical altercation that immediately followed sudden quarrel); State v. Hill, 242 Kan. 68, 72-73, 76, 744 P.2d 1228 (1987) (failing to instruct on heat of passion voluntary manslaughter was error where evidence showed victim assaulted and insulted defendant immediately before defendant shot victim). Under the circumstances present here, a heat of passion voluntary manslaughter instruction was not factually appropriate. As a result, the district court did not err in refusing Finley's request to issue the instruction. 17  2. Defense of an Occupied Vehicle K.S.A. 21-5404(a)(2) defines a second type of voluntary manslaughter as "knowingly killing a human being committed . . . upon an unreasonable but honest belief that circumstances existed that justified use of deadly force under K.S.A. 21 -5222, 21- 5223 or 21-5225, and amendments thereto." Upon Finley's request and consistent with this definition, the district court instructed the jury, in relevant part, that the State had to prove: (1) Finley knowingly killed Jackson and (2) the killing was done upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person. See K.S.A. 21-5222(a), (b) (A person is justified in the use of deadly force "when and to the extent it appears to such person" and "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."). This type of killing is often refer red to as imperfect self-defense voluntary manslaughter. State v. Seba, 305 Kan. 185, 208, 380 P.3d 209 (2016). For the first time on appeal, Finley argues the district court erred by failing to also include language in this instruction defining voluntary manslaughter under K.S.A. 21- 5223, defense of an occupied vehicle. See K.S.A. 21-5223(b) ("A person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling, place of work or occupied vehicle 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 another."). Finley contends that, construing the facts in his favor, there is evidence to support a defense of an occupied vehicle voluntary manslaughter instruction because he "honestly believed that he was justified in the use of deadly force to prevent the unlawful attack upon his soon-to-be occupied vehicle to prevent 'imminent' death or great bodily harm to 18 himself." In other words, he suggests that he intended to occupy the vehicle but needed to kill Jackson before he could safely do so. In support of his honest belief, Finley cites the following statements he made to law enforcement: • Jackson was known to carry a gun and was carrying a gun at the gas station; • Finley felt his life was in danger after wrestling the backpack away from Jackson because Jackson said he would "park that jeep," leading Finley to believe that Jackson would shoot up the Highlander as soon as Finley got inside. Finley's argument is unavailing. K.S.A. 21-5223(b) expressly authorizes the use of deadly force to prevent or terminate an unlawful entry into or attack upon an occupied vehicle. Although an imperfect-defense voluntary manslaughter instruction requires only an unreasonable but honest belief that deadly force was justified, the circumstances the defendant honestly believed existed must be such that, if true, they would hav e supported a claim of perfect self-defense. State v. Roeder, 300 Kan. 901, 923-24, 336 P.3d 831 (2014) (holding that imperfect self-defense requires an honest belief in circumstances that, if true, would have supported a claim of perfect self-defense); Seba, 305 Kan. at 208-09 (reaffirming that an unreasonable but honest belief does not support imperfect self-defense unless the circumstances, if reasonably believed, would have justified deadly force under K.S.A. 21-5222); see State v. Zongker, 319 Kan. 411, 420, 555 P.3d 698 (2024) (applying the same principle to an imperfect defense-of-property claim). Here, the Highlander was unoccupied when Finley shot Jackson. Finley did not claim he believed the Highlander was occupied or that Jackson was attacking an occupied vehicle. Rather, he claimed that he intended to enter the Highlander but feared Jackson would shoot him once he did so. Even accepting Finley's account as true, the circumstances he believed existed would not have justified deadly force under K.S.A. 21 - 19 5223(b). His intention to occupy the Highlander at some future point does not satisfy the statute's requirement of an occupied vehicle. To conclude otherwise would effectively eliminate that statutory requirement. Moreover, even assuming Finley honestly believed Jackson would shoot him once he entered the Highlander, that belief concerned a potential future attack, not an imminent threat of death or great bodily harm. See State v. White, 284 Kan. 333, Syl. ¶ 9, 161 P.3d 208 (2007) ("Although the term 'imminent' describes a broader time frame than immediate, the term 'imminent' is not without limit. The danger must be near at hand."), superseded by statute on other grounds as recognized in State v. McLinn, 307 Kan. 307, 320, 409 P.3d 1 (2018). Thus, even viewing the evidence in the light most favorable to Finley, the circumstances he honestly believed existed would not have supported a claim of perfect defense of an occupied vehicle and, consequently, did not provide a factual basis for an imperfect-defense voluntary manslaughter instruction under K.S.A. 21- 5223(b). The district court instructed the jury on imperfect self-defense voluntary manslaughter under K.S.A. 21-5222. Because the evidence did not support an additional instruction based on defense of an occupied vehicle under K.S.A. 21 -5223(b), the district court did not err in failing to include that language. II. Prosecutorial Error Finley argues that the prosecutor committed reversible error during closing argument by commenting on facts not in evidence and inflaming the prejudices of the jury. Finley did not object at trial to the comments he challenges on appeal, but a contemporaneous objection is not required to preserve a prosecutorial error claim based 20 on a prosecutor's comments made during voir dire, opening statement, or closing argument. An appellate court may, however, factor the presence or absence of an objection into its analysis of the alleged error. State v. Bodine, 313 Kan. 378, 406, 486 P.3d 551 (2021). A. Stand