State v. Gentry, No. 116,371

• Court: United States State Supreme Court of Kansas
• Writing for the Court: The opinion of the court was delivered by Rosen, J.
• Citation: 449 P.3d 429
• Decision Date: 20 September 2019
• Docket Number: No. 116,371
• Parties: STATE of Kansas, Appellee, v. Stephen A. GENTRY, Appellant.

449 P.3d 429

STATE of Kansas, Appellee,
v.
Stephen A. GENTRY, Appellant.

No. 116,371

Supreme Court of Kansas.

Opinion filed September 20, 2019.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Ellen Hurst Mitchell, county attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.

The opinion of the court was delivered by Rosen, J.:

449 P.3d 432

A jury convicted Stephen Gentry of first-degree murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. We affirm Gentry's convictions but vacate in part the restitution order.

FACTUAL AND PROCEDURAL BACKGROUND

Gentry's convictions arose from a shooting that occurred late in the evening on May 6, 2015, resulting in the death of A.S. The events that led to the shooting began a day earlier. On May 5, 2015, Gentry lived with his girlfriend, Kaylee Ovalle. That evening, Ovalle called the police after having an altercation with Gentry. When an officer responded to the call, Gentry was gone, and attempts to locate Gentry failed. Ovalle stayed with her grandmother that night.

Earlier on May 6, 2015, Ovalle contacted her mother, Amber Ovalle, and asked her to help collect some of Ovalle's belongings from the apartment. Amber's boyfriend, Chad Bennett, and Bennett's coworker, Anthony Darby, agreed to accompany them. Around 5 p.m., Bennett picked up Amber and Darby and drove to Ovalle and Gentry's apartment. Bennett was driving a green Dodge pickup truck. This truck belonged to Amber's father, but, in May of 2016, Ovalle usually drove the truck. Ovalle was at the apartment getting her clothes and other things together when Bennett, Darby, and Amber arrived.

Around the same time that day, Gentry was with his friend Daniel Sims in Sims' apartment, which was across the hall from the apartment Gentry and Ovalle shared. A friend of Gentry's, Andrew Woodring, showed up at Sims' apartment. Macio Palacio, who was a friend of Woodring's, and Palacio's girlfriend, Azucena Garcia-Ferniza, were with Woodring. While they were all at Sims' apartment, Palacio showed Woodring and Gentry a gun. At trial, Sims would describe it as a "Glock .45." After about 30 minutes, Woodring, Palacio, and Garcia-Ferniza left Sims' apartment. After they left, Gentry and Sims went across the street to a Kwik Shop. They stayed there for 10 to 15 minutes and then left to return to the apartment complex.

Bennett and Darby were standing outside of Ovalle and Gentry's apartment when Gentry and Sims returned from the Kwik Shop. The men yelled at each other and eventually Darby hit Gentry in the face and broke Gentry's glasses. They separated and Bennett, Darby, Amber, and Ovalle left in the green pickup truck.

After the altercation, Gentry and Sims went to Jerome Forbes' apartment. Forbes and his girlfriend were both at the apartment. Gentry was upset about getting hit in the face. He called Woodring and told him he wanted to get revenge and asked him to come over and bring Palacio's gun. Gentry would later tell detectives that he wanted the gun there because, during a fight, there is always someone who stands in the back with a gun. According to Gentry, this way your adversaries know that if they pull out a gun, the other side will also pull out a gun. Gentry stated that "the only way it would have

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turned into a gun fight is if they pulled one out and fired." Gentry said that this is basic knowledge, but since he did not know Palacio, he could not confirm that Palacio knew that he was just supposed to stand guard with a gun.

While the men were waiting for Woodring to arrive, they discussed jumping Bennett and Darby and whether they would bring rolls of quarters or a baseball bat to the fight. Sims would later testify that when Woodring and Palacio arrived, he saw the bulge of a handgun in Palacio's waistband and, regarding the handgun, Palacio told Gentry, "I got that." According to Sims, Gentry replied, "Okay." Gentry would later tell detectives that Palacio did not take out his gun but that he knew Palacio had the gun. Gentry told Palacio and Woodring that three or four individuals jumped him and that he wanted to go to Amber and Bennett's house to fight them. He said that no one had to go with him, but Sims, Forbes, Palacio, and Woodring all left the apartment with Gentry. Woodring drove. Sims would later testify at trial that fighting "was the goal, plan of that night."

Gentry directed Woodring to the house where Amber and Bennett lived. During the drive, Gentry was still angry and said that he was not going to let "[t]hem get away with hitting him in the face." Gentry told Woodring to park the car a block away so that no one would see their car. The five men got out and walked toward Amber and Bennett's house. When they saw that no lights were on in the house, they determined no one was home and began to walk back to the car.

Gentry generally agrees with the facts up to this point. From here, Sims' and Gentry's stories diverge. Sims testified for the State and confirmed that the charges against him had been reduced to involuntary manslaughter in exchange for his testimony. Sims testified that when they got back to the car, the following events took place: Gentry was telling the men that he wanted to wait for Bennett and Darby to come to the house when they all noticed a truck driving down the road toward them. Woodring was standing in the street by the driver's side of the car, and Sims, Forbes, Palacio, and Gentry were standing on the passenger side of the car in the grass. Gentry said they should wait and see what the truck was going to do. The street was dark, but Sims saw two people in the truck. The truck slowed down as it passed by the men standing by the car because the street was narrow. When the truck was 5 to 10 feet beyond the men, Gentry commanded Palacio to shoot. Palacio stepped into the street and started shooting as Gentry got into the car. Sims heard five shots and then ran. Forbes followed him.

Gentry described the event differently. In two video-recorded interviews with detectives, Gentry stated that after he and the other men returned to the car, he climbed into the back seat by himself because Forbes and Sims had decided to walk home. Gentry then saw headlights coming toward the car. Someone told him that it was a truck. When the truck got closer, Gentry saw that is was not the truck that Ovalle drove. Gentry told Woodring and Palacio that it was "not the truck," but Woodring insisted that it was. Palacio, who had been about to get into the passenger's seat, stepped away from the car and toward the street. He asked Gentry if that was "the truck," and Gentry replied that it was not the truck. After the truck passed the men, Palacio asked Woodring if it was the truck and Woodring said that it was. Palacio then pulled out his gun and started shooting. Woodring then drove Palacio and Gentry to one of Woodring's friend's houses, and the three men separated.

Vince Johnson was driving the truck that drove past the men that evening. Johnson's girlfriend, A.S., was in the passenger seat of the truck. About 15 to 20 seconds after Johnson passed the car, he heard four to six gunshots and sped up. After driving away from the gunshots, he stopped the truck and noticed that A.S. had been hit. A.S. was transported to the hospital and died shortly after midnight on May 7, 2015.

Someone called the police at 9:27 p.m. on May 6, 2015, in regard to shots fired in the area where Woodring had parked the car. When the police investigated, they found five spent shell casings in the street. Johnson's truck had projectile holes in the tailgate and in the upper right-hand side of the back of

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the truck. The back window was shattered, and there was a bullet hole through the front passenger side headrest and a .45 caliber round on the dash.

The police eventually searched Palacio's home and found a Glock 30 semiautomatic .45 caliber handgun in the possession of Garcia-Ferniza. A firearm and tool mark examiner from the Sedgwick County crime lab would testify at trial that it was his opinion the fired bullet found in the dash of Johnson's truck and the fired cartridge cases found in the street were fired from that gun.

On May 11, 2015, the State charged Gentry with first-degree murder for the death of A.S., attempted first-degree murder for attempting to kill Johnson, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. The State also charged Sims, Palacio, Forbes, Woodring, and Garcia-Ferniza in separate cases in connection with the events surrounding A.S.'s death.

Gentry's trial was scheduled for April 11, 2016. On March 25, 2016, Gentry moved for a continuance. He asserted that Palacio had retained a firearms expert who had not yet finished his report. Gentry wanted a continuance so he could depose and possibly retain the expert. The district court denied the motion and the case proceeded to trial.

At trial, the State conceded that Palacio fired the gun that killed A.S., but it argued that Gentry aided or abetted him by planning and fueling the entire encounter and...