Attempted Felony to Felony Murder: Establishing Res Gestae When the Underlying Charge is an Inchoate Crime

State v. Palmer, No. 127,505, 2025 WL 2990012 (Kan. Oct. 24, 2025). 

Staff Editor Alex Davis

November 8, 2025

Issue: When the predicate offense charged under felony murder was merely attempted aggravated robbery, does the res gestae element include only those events occurring during the attempt?

Answer: No.  The res gestae element of felony murder encompasses acts committed before, during, and after the principal occurrence of the predicate offense.  And when the underlying felony is an inchoate crime, the principal occurrence refers to the intended crime, not just the attempt itself. 

Facts: Three masked individuals broke into an apartment and demanded drugs, money, and guns.  One of the masked individuals was armed.  Hearing the commotion, three individuals barricaded themselves into a bedrooms.  When one of the intruders attempted to enter the bedroom, a warning shot was fired through the door by one of the occupants.  After the warning shot was fired, the intruders began to retreat and abandon the robbery.  However, gunfire then erupted, and a witness saw one of the masked individuals fire his weapon several times before the three intruders fled the apartment, killing an individual. 

Discussion: On appeal, Defendant attempted to argue that, because the killing occurred after the intruders had ceased their attempted robbery, the killing thus fell outside of the res gestae of the attempted aggravated robbery.  However, the Court clarified that when the predicate offense charged under felony murder is an inchoate crime, like attempted aggravated robbery, the principal occurrence is defined as the intended crime.  A defendant is not criminally liable for actions leading up to an attempt, so for res gestae––which includes all acts before, during, and after the offense––the principal occurrence should be defined as the intended crime, not the attempt itself.  Therefore, Defendant’s argument that the res gestae element is not satisfied because the attempted aggravated robbery had ceased, fails. 

Key Authorities: 

Kan. Stat. Ann. § 21-5402(a)(2). (Felony murder statute).

State v. Carter, 516 P.3d 608 (Kan. 2022) (Explaining the statutory framework for establishing felony murder).

State v. Palmer, No. 127,505, 2025 WL 2990012 (Kan. Oct. 24, 2025) (Clarifying that the principal occurrence for an attempted crime should be defined as the intended crime because criminal liability does not exist before an attempt).