State of Kansas, Appellee, v. Tremaine Paul Longar, Appellant. (2026)

MEMORANDUM OPINION

A jury convicted Tremaine Paul Longar of attempted aggravated burglary and criminal threat following an incident that occurred between Longar and his neighbors. Longar now appeals the conviction for attempted aggravated burglary arguing there was insufficient evidence to support the conviction. He also raises two jury instruction errors although he failed to object to these instructions at trial, making them only reversible under the clear error standard.

Longar's claims fail on appeal. There was sufficient evidence supporting his conviction for attempted aggravated battery. Additionally, even if this court assumes there was error in failing to give the unrequested jury instructions, it is not firmly convinced the added instructions would have affected the jury's verdicts. Longar's convictions are affirmed.

Factual and Procedural Background

In October 2021, officers responded to a call of an ongoing disturbance at a residence in Wichita, Kansas. The first officer to arrive on the scene saw a male, later identified as Longar, walking around, shouting, and waving his arms. The officer observed Longar walking toward one side of a duplex where Howard (a pseudonym) lived, and then she heard a gunshot. As Longar walked back toward the other side of the duplex, the officer ordered Longar to the ground. The officer rendered medical aid to Longar, who had sustained multiple gunshot wounds to the lower back and neck.

Another officer arrived on the scene and saw Howard exit his residence and say that he was the person who shot Longar. Howard gave the officer permission to enter his residence, and the officer found a gun inside.

After the State completed its investigation, it charged Longar with attempted aggravated burglary and criminal threat. The State alleged that during the incident on October 4, 2021, Longar had attempted to enter Howard's residence with the intent to commit an aggravated battery.

The State's evidence

At trial, Howard explained that he was sitting in his living room when he heard a banging noise that continued intermittently for a couple of hours coming from his neighbor Brandon's (a pseudonym) residence. Howard and Brandon lived on either side of a duplex. Howard testified that he texted Brandon about the noise, and Brandon reported that Longar was pounding on his door, frightening him, and would not leave him alone. Howard decided to step out and say something to Longar.

Howard testified that when he stepped halfway outside his front door, he told Longar that Brandon was not feeling well and to try him later. According to Howard, Longar replied that he should “mind [his] fucking business.” Then Longar turned toward him, screamed, and ran at him, so Howard stepped back into his home. As soon as Howard closed and deadlocked the door, Longar was “going crazy,” calling him the N-word, and screaming “I'm in charge, I'm going to get you, fuck you,” among other things.

Howard said he called 911 a minute or two into the situation and it sounded like Longar was hitting a wooden baseball bat against his door. Howard later learned Longar had used a 4x4 wooden post to bang on his door, damaging it such that it had to be replaced. Howard explained that he stayed on the call with emergency services for eight or nine minutes until his doorframe “was actually shaking like it was about to break down,” at which point he went into his bedroom and retrieved his gun. When Howard went into the bedroom, Longar appeared outside his bedroom window and started throwing bricks in an apparent attempt to enter that way. Howard testified that Longar screamed and threatened that he was “going to get” Howard.

While Howard was on the phone with 911, Longar threw a brick that shattered Howard's window and broke the blinds. This event is audible on the 911 call the State played for the jury. Howard testified that Longar had broken out a section of the window and that it “looked like he was going to try to reach in and unlock it,” at which time Howard shot his gun at Longar.

Howard shot at Longar which scared him off for a few moments, but Longar returned and threw a brick at Howard's face through the window. Howard shot at Longar again, testifying that he believed Longar was not going to stop and was trying to get into his bedroom. During his interview, Howard said that “it looked like [Longar] was going to try to come in again.” It was after Howard fired the second shot that Longar took off— the first officer had just arrived at the scene and heard the shot.

Howard later had a brief interview with a detective that was played for the jury at trial. During the interview, Howard recounted the events and said that people in the neighborhood feared Longar as he had “always been kind of crazy.” Howard said that Longar had been seen constantly drinking and harassing his neighbor and banging on his neighbor's door.

Brandon also testified at trial about the events, confirmed that Longar was intermittently knocking on his front door and had asked for vodka at least once. Brandon testified that he had witnessed Longar “drinking all day,” that he smelled like alcohol, and that he was acting erratically. Brandon said he called Howard and said, “[T]hat crazy S.O.B. is at my door,” and asked Howard to tell Longar to get away.

Brandon's interview with detectives was also played for the jury where he said the events started the previous night on October 3 when Longar came over and slammed Brandon's door open knocking him into his lounger. During the interview, Brandon told detectives that Longar had tried to destroy his mailbox on the night of October 3 before finally leaving him alone for the night. He said that Longar bothered him the next day talking nonsensically so he called Howard and told him what was going on.

On cross-examination, Longar's attorney asked Brandon if he could recall an incident involving two kids in the neighborhood, and Brandon said that he remembered something that occurred with “two little black kids that stole out of [his] yard.” Brandon explained that he had some lawn decorations that two neighborhood kids took from his yard. When he told the kids to return the items, they demanded $80. Brandon said that he “shot at them, but [he] made sure [he] wasn't shooting at them,” but then denied shooting at them and said he scared the kids and drove his truck around the corner but never saw them again. Brandon said he had forgotten about the incident, that he had no idea if Longar witnessed it, and that no one had ever mentioned the incident to him again.

A detective testified that she investigated a potential incident involving Brandon and Longar that had occurred before October 4. The detective found three relevant 911 calls from September 29, which were played for the jury. In the first call, a woman tells dispatch that an older, white man in a blue truck pointed a handgun at some kids near her residence before driving away. The woman reported that the kids said the man lived around the corner and the man said the kids stole something from him. The same woman placed two more 911 calls within a couple of hours, asking when officers would respond to the scene. The detective said that she interviewed the woman and later determined Brandon was the older man in the truck.

The detective spoke to Longar, and the State played the recording for the jury. In the call, Longar described Brandon as a “hostage taker” and said that he waited for police to arrive for hours while Brandon still wanted to “hunt the children.” Longar also described the events on October 4 as if they occurred on the same day Brandon threatened the children, which had occurred five days before. Longar told the detective that he spoke to Brandon, who apologized for threatening the kids, and after the men shook hands and Longar was walking away “the other guy” started to fight with him and went in to get a gun. Longar stated that it was only after he saw that Howard had a gun that he grabbed rocks and threw them through Howard's window to knock Howard out, knock the gun out of his hand, or get him to run away. Longar said he used a mailbox post to “joust” the gun from Howard's hands through the window. Longar said that at one point, he “did try to reach through the window with the stick that [he] had in [his] hands,” and he threatened to kill the man with the stick because the man threatened to kill him with the gun.

At trial, the detective testified that after her phone conversation with Longar, it was her understanding that Longar believed the incident with Howard had occurred on the same day as the September 29 incident with the children. The detective said Longar had also sent some emails with roughly the same story.

The State called a second detective, who testified that he arrested and interviewed Longar, and the interview was played for the jury at trial. During the interview, Longar told the detective a similar story to the one he told the first detective on the phone. He said the incident started when Brandon complained about neighborhood kids stealing stuff out of his front yard, and then Brandon became irate and went into his home and came back holding a gun. Longar said that Brandon pointed the gun at the kids, who then ran away, and Brandon got into his truck and followed them. When Longar caught up to them, he said that the kids were ducking behind an occupied, white truck while Brandon pointed a gun at them.

Longar told the detective that after the incident, Longar waited for the police but, when they did not come, he eventually went and knocked on Brandon's door believing that Brandon would either shoot him or that “he had done a good job and had talked him out of killing these hostages.” He said Brandon immediately apologized to him and Longar said that he would “testify against” Brandon, but that he would also testify that Brandon had put the gun down. At that point, according to Longar, the men shook hands and as he walked away, he heard the door open behind him from the other side of the duplex.

Longar told the detective that Howard then came out and threatened to shoot him and then stepped back into his apartment. He said that he peered into Howard's apartment window and saw Howard holding a pistol, and then Longar picked up rocks and threw them through Howard's window. Longar said that he was only trying to protect himself and did not intend to criminally threaten or commit burglary. Longar explained that he was simply holding Brandon and Howard “at bay” until the police arrived.

Longar's testimony at trial

Longar testified similarly to what he shared in his interviews with the detectives. According to Longar, in September 2021, he was doing maintenance work in the front yard when Brandon came out of his residence and told Longar that he “was going to kill the neighborhood kids for stealing stuff out of his front yard.” According to Longar, Brandon went inside his apartment, came back out with a revolver, and counted the bullets in front of him. Brandon then pointed the gun at the kids across the street, who fled toward the park. After that, Brandon got into his truck to chase after them while threatening to kill them. Longar said that he went into his apartment to look for something to shield or protect the kids, and then went running after them.

Longar said that when he caught up with them, Brandon was pointing a gun at the children while they ducked behind an occupied truck. Longar said that Brandon was standing next to his truck “in an aggressive manner trying to shoot the children ․ making it a point that he really wanted to shoot the black children.” According to Longar, his presence scared Brandon, who got back in his truck and headed home. Longar testified that for the “next few days” after Brandon threatened the kids, whenever Brandon or Howard would come out onto their porches, he would “go bark at them to go back in their house and leave the kids alone.” Longar explained he was still waiting for the police to show up and not wanting to abandon the children. Longar said that the police never followed up on the incident with Brandon and the neighborhood kids.

Longar testified that Brandon had been “taunting” him, or rather, “hunting, luring, waiting to see if [he] was paying attention.” Longar believed that if Brandon came out on the porch to smoke his cigarette and Longar did not go outside as well, then Brandon would go inside and get his revolver and then shoot the kids. Longar said he would go over to Brandon's apartment, pound on his door for 5 to 10 seconds—to make sure Brandon knew Longar was aware of his “hunting”—and then return to his own apartment. Longar said that he did this repeatedly between September 29 and October 4, and that he “barely got any sleep”—approximately one hour in total.

Longar described the events of September 29 and October 4 as “one situation.” He believed that the police had “given [him] the okay to go over there and hold [Brandon and Howard] at bay until they got there.” Longar also admitted that he told Brandon and Howard, “I'll kill you,” because he wanted the neighbor kids to know that their protector was “evening up the score” and would not abandon them.

Longar testified that on October 4, he drank a small bottle of vodka—probably a pint—and some beers. On that evening, he saw Howard outside and as Longar turned to go back to his apartment, Howard said, “[W]e don't like Christians, get the fuck out of here.” Longar said that he told Howard that Brandon was holding the neighborhood kids hostage. According to Longar, Howard said that he was going to get a gun and shoot him, to which Longar responded that he was not going to “abandon the children.” Longar said that Howard went inside and got his gun. When Longar saw Howard aim at him through the window, “that's when [Longar] defended [himself] and protected and served the neighborhood.” Longar picked up a rock and bricks and threw them at Howard.

Longar said that after he threw the first rock which broke Howard's window, he went and opened Howard's screen door and started kicking Howard's interior front door so that Howard “would be scared enough to not grab the handle and fear the door was going to fly open and crush his hand or something.” Longar said that when Howard started shooting, he was throwing the bricks through the window with the intent to knock the gun out of Howard's hand or scare him into putting the gun down. Longar believed he was going to get shot and killed, and that there were not many options.

Longar testified that he was unarmed and picked up Howard's mailbox to use as a “shield and as a jouster” to knock the gun out of Howard's hand. Longar said he “reached in to block the gun,” and he was “pretty sure” his hand went inside the window, but he had to be careful of the broken glass. As Longar pulled his arm back out of the window, Howard shot him in the neck, putting Longar in the hospital for three weeks.

Longar said that he never tried to climb through Howard's window or break down his door, he was simply trying to cause enough noise that a neighbor would call the police. Longar said that he knew from the September 29 incident that Howard was an accomplice and “lookout guy” in Brandon's plan to “hunt” the kids. Longar testified that he was “[p]retty sure” he threw the first projectile at Howard's window because Howard shot at him first. In general, Longar asserted that he acted to protect himself and the neighborhood kids.

After hearing the evidence and the arguments of the State and the defense, the jury ultimately found Longar guilty of attempted aggravated burglary and criminal threat. The district court imposed a controlling sentence of 45 months in prison.

Longar appealed.

Discussion

Longar raises three issues on appeal that he contends require reversal of his convictions. First, Longar argues there was insufficient evidence to support his conviction for attempted aggravated burglary because there was evidence that he in fact committed aggravated burglary making him unable to be convicted of the same attempted offense. Second, Longar argues the district court erred by not including an unrequested jury instruction of justified use of force, more commonly known as self-defense. Longar's third argument is that the district court erred by failing to include the burden shifting portion of the jury instruction along with the included instruction for voluntary intoxication.

I. Sufficient Evidence Supported Longar’s Attempted Aggravated Burglary Conviction.

Longar argues the State failed to establish sufficient evidence to support his conviction because the State failed to prove that he attempted but failed to commit aggravated burglary. Longar contends that the uncontested evidence shows that he succeeded in committing aggravated burglary because he physically entered Howard's apartment, and thus he could not have been convicted of the attempted offense.

When a defendant challenges the sufficiency of the evidence supporting their conviction on appeal, this court reviews the evidence in the most favorable light to the State to determine “whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.” State v. Mendez, 319 Kan. 718, 723, 559 P.3d 792 (2024). The State must establish each element of a charged offense to meet the sufficiency of the evidence to sustain a conviction. State v. Hilyard, 316 Kan. 326, 330, 515 P.3d 267 (2022). This court exercises unlimited review of statutory interpretation. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024).

The first step in analyzing Longar's claim is to establish the elements of the offense at issue—attempted aggravated burglary. The State charged Longar under K.S.A. 2021 Supp. 21-5807(b)(1), which states that “aggravated burglary is, without authority, entering into or remaining within any ․ dwelling in which there is a human being, with intent to commit a felony, theft or sexually motivated crime therein.” The burglary statute does not define the attempted offense, so the court looks to the statutory definition of attempt. K.S.A. 21-5301; see State v. Larsen, 317 Kan. 552, 558, 533 P.3d 302 (2023) (“The default definition applies to attempted burglaries because the burglary statute does not have its own attempt definition.”). That default statutory definition of an attempted offense requires proof of “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21-5301(a). Longar contends that the State's evidence does not show the last part of the attempt definition—that he failed in the perpetration of the intended crime.

Longar is correct that this is an essential element of an attempted crime. “An attempt crime has three essential elements: (1) the intent to commit the crime, (2) an overt act toward the perpetration of the crime, and (3) a failure to consummate the crime.” Swenson v. State, 284 Kan. 931, Syl. ¶ 5, 942, 169 P.3d 298 (2007). Therefore, the question on appeal is whether the State presented sufficient evidence to support a finding that Longar failed to accomplish an aggravated burglary.

Longar asserts that because the evidence shows he succeeded in entering Howard's apartment, he cannot be convicted of the attempted aggravated burglary. In support of this contention, Longar points to Howard's testimony that “it looked like [Longar] wasn't going to stop, he was coming in there.” He also points to his own testimony about putting the post through the window. Longar testified that he pushed Howard with the post through the window—that at first, the men were on either side of Howard's bedroom window:

“Q. And when you put that post through the window, where was Samuel Howard standing?

“A. On the other side of the window.

“Q. Immediately on the other side of the window?

“A. At first. I was able to push him back into the apartment and that's—I stayed on the outside, that's all I was really wanting, but then I guess he got more brave and started coming towards the window closer again and shooting, so at that point I put the mailbox down and I had—as he reached closer towards the window, I had also met him at the window and was trying to block the gun with my hand.”

Longar also testified that he put his hand through the window:

“Q. Do you know if you ever put your hand in the window, through the window?

“A. You know, honestly I think my hand made it about this far (indicating) because with the broken glass and everything I had to be careful, I just wanted to block the gun because he was using the hole to shoot through, so I reached in to block the gun.

“Q. Did your hand or your arm get cut by the window?

“A. No, because I didn't leave it in long. I drew my hand back out.

“Q. Are you sure your hand went inside the window?

“A. I'm pretty sure, yeah.

“Q. Okay, but you didn't have any injuries on your hands or your arms?

“A. No. And I wasn't really moving around or trying to enter the apartment. I was just simply trying to block the gun and as he was taking shots, I realized it was probably not the best situation to be in and I have to cut my losses on standing my ground. As I pulled my arm back out of the[ ] window and as I was trying to leave, he shot me in my neck.”

Although Longar focuses on the evidence tending to show that he entered Howard's apartment—that was not the only evidence available to the jury. The question is whether the State presented sufficient evidence upon which a rational fact-finder could have found Longar guilty of attempted aggravated burglary beyond a reasonable doubt, which requires the court to look at all the available evidence. State v. Palmer, 321 Kan. 302, 305, 578 P.3d 97 (2025).

The jury heard Howard testify about the moments leading up to him shooting at Longar, stating that it “looked like [Longar] was going to try to reach in” the window. Howard then said, “[B]ut I don't think [Longar] could actually physically, so it looked like he was going to try to reach in and unlock it or something and that's when I shot.” Howard also testified about Longar's behavior and position when Howard fired the second shot and explained that Longar was about to enter the window:

“Q. Did you ever see his hand come through the window?

“A. Right in front of the window, yes, like he was about to come through.

“Q. About to come?

“A. Yes.

“Q. Okay, so you shot him?

“A. That's the second time, the first time he did the same thing, too.

“Q. So you thought he was about to come in the window so you shot the second time and that's when you hit him?

“A. Yes.”

As Longar asserts, an attempted criminal offense and the completed criminal offense are mutually exclusive, in that a defendant cannot be convicted of both offenses based on the same facts. State v. Hernandez, 294 Kan. 200, 204, 273 P.3d 774 (2012) (“It is a legal impossibility to both attempt the commission of a crime and complete the commission of the same crime, because the failure to complete commission of the crime is an element of attempt.”). Here, unlike the cases relied on by Longar, the jury did not mistakenly return a verdict for both the criminal offense and its attempt. Instead, the jury was presented with facts that supported a conviction for either the criminal offense or the attempted offense. On appeal, this court does not reweigh the evidence or assess witness credibility—which is what Longar seeks here.

Given the available evidence, the jury could have found Howard more credible and disbelieved Longar's testimony that he was “pretty sure” his hand went inside the window. The uncontested facts that Longar was outside of the residence at the time he used a post and rocks to batter Howard's door and break his window and remained outside when he was shot, combined with Howard's testimony that Longar did not enter the apartment, support a finding that Longar never physically entered Howard's apartment. Moreover, no one (not even Longar) claims that Longar got more than a hand inside Howard's apartment. Thus, viewing the evidence in the most favorable light to the State, this court finds that a rational fact-finder could have found Longar failed to accomplish the aggravated burglary; thus guilty beyond a reasonable doubt of attempted aggravated burglary.

II. No Error for Failing to Give a Justifiable Use of Force Instruction

For the first time on appeal, Longar argues that the district court erred by failing to give a justified use of force instruction without either party requesting the instruction. Longar contends that because he testified that he was protecting himself and the neighborhood kids against a dangerous physical threat, such an instruction was warranted. When reviewing a claim of error related to a jury instruction, this court follows a three-step process to determine whether: (1) there is appellate jurisdiction; (2) error occurred; and (3) any identified errors require reversal. State v. McLinn, 307 Kan. 307, 317-18, 409 P.3d 1 (2018).

The first step concerns whether the defendant preserved the claim for appeal, which impacts the standard for reversal applied in step three. 307 Kan. at 317-18. The failure to request the jury instruction, which is what occurred here, does not preclude appellate review, but it impacts the reversibility standard. K.S.A. 22-3414(3); see also State v. Knox, 301 Kan. 671, 680, 347 P.3d 656 (2015) (“When a party fails to object to or request a jury instruction at trial, K.S.A. 22-3414[3] limits appellate review to a determination of whether the instruction was clearly erroneous.”). The parties agree that Longar did not request a use of force jury instruction, and thus at step three this court reviews his claim under the clear error standard as discussed below. K.S.A. 22-3414(3).

Having established step one, this court must determine whether an error occurred at step two. In assessing error from the failure to give a jury instruction, this court must determine whether the jury instruction was legally and factually appropriate, exercising unlimited review. McLinn, 307 Kan. at 318. The parties dispute the legal and factual appropriateness of the use of force instruction in this case. The State contends there are no facts supporting the instruction. Longar contends that he should have received the pattern jury instruction for justifiable use of force in defense of others that stems from K.S.A. 21-5222 and states that the:

“Defendant is permitted to use physical force against another person, including using a weapon or threaten by words or actions to use physical force against another person including a threat to cause death or great bodily harm when and to the extent it appears to him and he reasonably believes such physical force, threat, or display is necessary to defend himself or someone else against the other person's imminent use of unlawful force.” PIK Crim. 4th 52.200.

In determining whether an omitted jury instruction was factually appropriate, this court must determine whether there was sufficient evidence—viewed in the most favorable light to Longar—that would have supported the instruction. State v. Holley, 313 Kan. 249, 255, 485 P.3d 614 (2021), on reh'g 315 Kan. 512, 509 P.3d 542 (2022). A defendant's own assertions, even if contradicted by other evidence, may provide adequate factual grounds to warrant an instruction. 313 Kan. at 255. However, the justifiable use of force jury instruction requires the person asserting the defense to have reasonably believed the use of force was necessary to prevent imminent death or great bodily harm. See K.S.A. 21-5222(b) (“A person is justified in the use of deadly force under circumstances described in subsection [a] 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 a third person.”).

Longar fails to demonstrate facts supporting a reasonable belief that his actions were necessary to prevent imminent death or great bodily harm to himself or another on October 4. The facts all demonstrate the events related to the children and Brandon occurred five days prior. Without belaboring the point, even assuming the jury instruction was factually appropriate the court must still find it legally appropriate. Holley, 313 Kan. at 254.

Longar makes no argument concerning the legal appropriateness of the justifiable use of force instruction and fails to explain how the instruction would legally apply to his charges. Longar's failure to brief this issue makes this court's analysis more difficult and could easily result in waiver of the argument. See State v. Gallegos, 313 Kan. 262, 277, 485 P.3d 622 (2021) (inadequately briefed issues are waived or abandoned).

This court notes several issues that impact the legal appropriateness of this instruction under these facts. First, the jury instruction for justifiable defense is not available when the defendant was “attempting to commit, committing or escaping from the commission of a forcible felony.” K.S.A. 21-5226(a). A “forcible felony” includes burglary. K.S.A. 21-5111(n). While this statute does not prevent a defendant charged with committing a forcible felony from asserting a theory of justifiable use of force, it provides that a defendant “may not assert self-defense if that defendant is already otherwise committing a forcible felony when he or she commits a separate act of violence.” State v. Barlett, 308 Kan. 78, 84, 418 P.3d 1253 (2018). The Kansas Supreme Court has also explained that the self-defense instruction is not legally appropriate when “the defendant is charged with a crime which does not include an element that can be legally justified by the use of force in defense of oneself or another.” State v. Milo, 315 Kan. 434, Syl. ¶ 2, 510 P.3d 1 (2022). Attempted aggravated burglary includes an element of attempting but failing to enter in, or remain in, a dwelling “in which there is a human being, with intent to commit a felony, theft or sexually motivated crime therein.” K.S.A. 2021 Supp. 21-5807(b)(1).

In determining whether self-defense can be used as a defense to a criminal offense, the key question is “whether there is an element of force, inherently necessary ․, which could be justified by the defense of oneself or another.” 315 Kan. at 444. It does not appear that physical force is a necessary element of attempted aggravated burglary, and thus it may not be legally appropriate. Longar failed to address these arguments related to the legal appropriateness of the jury instruction. Yet again, it is unnecessary to belabor this point because even assuming the omitted instruction was legally and factually appropriate—which this court does not decide—there is no reversible error at the third step.

At the third step, because Longar failed to request the jury instruction at issue, any error committed by failing to give the instruction is reversible only if that failure is clearly erroneous. K.S.A. 22-3414(3). Under the clear error standard, the appellate court will only reverse if an error occurred and it is “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” McLinn, 307 Kan. at 318. As the party claiming clear error, Longar has the burden to demonstrate both error and prejudice. Mendez, 319 Kan. at 727-28.

The self-defense statute sets out a two-part test for its applicability, one part is subjective and one part is objective. In the first part, the defendant must demonstrate a sincere belief that the use of force was necessary to defend oneself or others. In the second part, the defendant's belief must be found to be reasonable such that a reasonable person under the circumstances would have also perceived the use of force necessary. State v. Turner, 318 Kan. 162, 167, 542 P.3d 304 (2024).

Even if Longar had a sincerely held belief that force was necessary, the issue remains as to whether that belief was reasonable under the circumstances. The facts show that Longar initiated violent actions against Howard while Howard was in his home and before he obtained a weapon. Then, after Howard grabbed his gun, Longar rammed Howard's door, threw rocks, and attempted to enter the broken window before and after Howard shot at him.

Longar testified that he continued to engage with Howard rather than leave because it was safer to face Howard outside and that he needed to protect the neighborhood kids or alert someone to call the police. However, the facts show that not only was Longar not surprised by Howard's actions in obtaining a weapon, but there was not present danger requiring Longar to engage Howard. Rather than leaving the outside of Howard's residence when presented with the potential for violence, Longar continued to escalate his own violent behavior. The facts clearly demonstrate that a reasonable person would not have believed that an imminent threat required them to bang on Howard's door with a post or break out the window and attempt to enter the home. See State v. Cook, 286 Kan. 1098, 1104-06, 191 P.3d 294 (2008) (discussing application of the reasonable person standard).

Even if Longar gets to the third step of the error review, this court is not firmly convinced the jury would have reached a different verdict if presented with the self-defense jury instruction. As such, there is no reversible error in the district court's failure to give the jury instruction.

III. No Reversible Error for Failure to Give Burden of Proof Instruction with Voluntary Intoxication Jury Instruction

At trial, the district court gave a requested voluntary intoxication instruction that stated: “Evidence of voluntary intoxication may be considered in determining whether such intoxication impaired the defendant's mental faculties to the extent that he was incapable of forming the necessary intent to commit aggravated burglary or criminal threat.” Though the district court gave this voluntary intoxication instruction, it did not include a separate instruction describing the burden of proof as it relates to this defense. Longar contends that the district court should have also included the jury instruction explaining that the State retains the burden of proof as to the charged offense:

“The defendant raises voluntary intoxication as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State has the burden to disprove this defense beyond a reasonable doubt. The State's burden of proof does not shift to the defendant.” PIK Crim. 4th 51.050 (2024 Supp.).

As explained earlier, this court employs that same three-step analysis in reviewing an alleged error from failing to give a jury instruction. State v. Buck-Schrag, 312 Kan. 540, 550, 477 P.3d 1013 (2020). Once again, Longar failed to request this instruction or object to its omission at trial and therefore, as already described, this court applies the clear error standard in its review. State v. Craig, 311 Kan. 456, 464, 462 P.3d 173 (2020).

Skipping to the final of the three steps, the Kansas Supreme Court has held that when the jury has been given accurate jury instructions on the elements of the crime, the presumption of innocence, and the State's general burden of proof, the court's failure to instruct on the State's continuing burden of proof is not clearly erroneous. See Buck-Schrag, 312 Kan. at 551-54 (no clear error when court failed to instruct on State's continuing burden of proof in light of self-defense instruction); State v. Cooperwood, 282 Kan. 572, 581-82, 147 P.3d 125 (2006) (no clear error for failure to instruct on State's continuing burden of proof). Longar acknowledges this precedent but suggests it was wrongly decided. Nevertheless, the Kansas Court of Appeals is duty bound to follow Kansas Supreme Court precedent unless there is some indication that the Supreme Court is departing from its previous position. State v. Patton, 315 Kan. 1, 16, 503 P.3d 1022 (2022). Longar does not suggest there is such an indication, nor is one apparent. This court is not firmly convinced that the jury would have reached a different verdict had it been given the additional burden of proof instruction and thus finds no reversible error from its omission.

Conclusion

Under the standards of review required of this court, Longar fails to prevail in each of his claims on appeal. There was sufficient evidence to support his conviction for attempted aggravated burglary, and this court does not find clear error from the omission of either of the jury instructions.

Affirmed.

Per Curiam: