State v. Rhoiney, 501 P.3d 368

Background

In October 2016 Rhoiney, driving a baby‑blue Ford Expedition, followed a motorcycle driven by Daniel Askew; an argument developed with occupants of a minivan (driver McCain; passenger Michael Stadler).
Rhoiney pulled alongside the minivan on 29th Street and fired into it; Stadler suffered fatal gunshot wounds. Physical evidence (9mm casings, glass, bullet fragments) tied the shooting to that location.
Askew testified Rhoiney said he fired “warning shots” to scare Stadler. Rhoiney later attempted to burn and conceal his SUV; it was found burned with identifiable paint and a reconstructed VIN.
Rhoiney was arrested in West Virginia aboard a bus with a hidden pistol and after giving false identification. He was charged with felony murder (underlying crime: criminal discharge of a firearm at an occupied vehicle), criminal discharge at a vehicle, and aggravated assault.
First trial: convicted of criminal discharge and aggravated assault; mistrial on felony murder. Second trial: convicted of felony murder. Sentencing: hard 25 for felony murder, 71 months concurrent for discharge, 13 months consecutive for assault.
On direct appeal Rhoiney raised five issues: (1) improper felony‑murder mental‑state instruction/due process, (2) prosecutorial error, (3) failure to give a lesser‑included instruction (discharge from roadway), (4) identical‑offense sentencing, and (5) cumulative error.

Issues

Issue	State's Argument	Rhoiney's Argument	Held
Felony‑murder mental‑state instruction (due process)	K.S.A. 21‑5202(c) means intentional/knowing conduct subsumes recklessness; no due process violation.	He was charged on a reckless theory and lacked notice he could be convicted on intentional/knowing mental states.	Unpreserved; court declined review and noted K.S.A. 21‑5202(c) supports State.
Prosecutorial error (three remarks)	Remarks were fair comment or remedied by prompt admonition; did not prejudice jury.	Remarks appealed to passion, were speculative/inflammatory and prejudicial.	One remark was improper but cured by an instruction; other remarks permissible; no prejudice.
Lesser‑included instruction (discharge from roadway)	First trial: lesser appropriate but facts showed direct shooting so any failure was harmless; second trial: felony murder has no lesser included.	Court should have instructed on the lesser offense in both trials.	First‑trial omission, if error, was harmless beyond a reasonable doubt; second trial no error because felony murder has no lesser included.
Identical‑offense sentencing	Claim unpreserved; K.S.A. 21‑6820(e)(3) does not compel reviewing new identical‑offense claims on appeal.	Claim reviewable for first time under statute or as pure legal issue; should be sentenced for lesser identical offense.	Unpreserved; court declines to consider the issue on appeal (followed Buck‑Schrag and Gray).
Cumulative error	Errors were minor, unrelated, and remedied; evidence overwhelming so no cumulative prejudice.	The aggregate errors deprived him of a fair trial.	No cumulative prejudice; errors harmless when viewed with strong evidence; convictions affirmed.

Key Cases Cited

State v. Arnett, 314 Kan. 183 (2021) (preservation‑exception framework)
State v. Sherman, 305 Kan. 88 (2016) (two‑step prosecutorial‑error test)
Chapman v. California, 386 U.S. 18 (1967) (harmless‑beyond‑reasonable‑doubt standard)
State v. Jefferson, 297 Kan. 1151 (2013) (lesser‑included instruction analysis)
State v. Plummer, 295 Kan. 156 (2012) (four‑step jury‑instruction review)
State v. Timley, 311 Kan. 944 (2020) (clear‑error standard for unobjected‑to instructions)
State v. Gentry, 310 Kan. 715 (2019) (felony murder has no lesser included offenses)
State v. Buck‑Schrag, 312 Kan. 540 (2020) (identical‑offense review not automatically required on appeal)
State v. Gray, 311 Kan. 164 (2020) (same holding on appellate review of identical‑offense claims)
State v. Owens, 314 Kan. 210 (2021) (cumulative‑error analysis)
State v. Barber, 302 Kan. 367 (2015) (effectiveness of jury admonition presumed)