Following Instructions: Factual Applicability of Child Endangerment and Self-Defense Jury Instructions
State v. Butler, No. 127,378, (Kan. Jan. 9, 2026).
Staff Editor Landon Sloan
January 24, 2026
Issue: Was refusing to instruct the jury on misdemeanor endangering a child harmless error and was an instruction on self-defense factually applicable when the defendant fired a gun towards fleeing minors immediately following a fight in which the defendant participated?
Answer: Yes and no. Firing a gun in the direction of children is inherently unreasonable—meaning a reasonable jury would have still reached the same verdict of aggravated endangering a child even if the lesser-included misdemeanor offense instruction was given, and given self-defense is not factually applicable when the defendant either lacks an objective belief that deadly force was necessary or engaged in mutual combat.
Facts: After arguing about meeting up to fight, N.M. and several others got into a physical altercation outside of one of their homes in Topeka, Kansas. Butler later arrived with several others and more fighting broke out. After the fight ultimately broke up, N.M. and her group began walking away from the home, closely followed by Butler and her group. After the groups began to argue, Butler first fired a shot into the air and then minutes later fired a second shot towards N.M.’s group, killing N.M.
At trial, the district court denied Butler’s request for an instruction on misdemeanor endangering a child, instead only instructing the jury on aggravated endangering a child, and instructed the jury on mutual combat instead of self-defense. The jury found Butler guilty of aggravated endangering a child, reckless second-degree murder, and first-degree felony murder.
Discussion: Misdemeanor endangering a child involves situations where the defendant’s conduct may endanger a child whereas aggravated endangering a child involves a scenario where the child was unequivocally endangered, which makes the conduct inherently unreasonable. Therefore, Butler was unable to show a jury would have reached a different verdict had the requested instruction been given, because firing a gun in the direction of children is inherently unreasonable.
Self-defense requires that a reasonable person would have believed deadly force was necessary to prevent imminent death or great bodily harm and that the defendant did not willingly engage in mutual combat. First, Butler engaged in mutual combat by exchanging blows. Second, a reasonable person would not have believed deadly force was necessary because N.M. and her group was actively fleeing when Butler shot her.
Key Authorities:
Kan. Stat. Ann. § 21-5222
State v. McCullough, 270 P.3d 1142 (Kan. 2012) (explaining that self-defense does not apply when the defendant willingly engages in mutual combat).
Kan. Stat. Ann. § 21-5601(b)(1) (defining aggravated child endangerment as “[r]ecklessly causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s life, body or health is endangered”)Kan. Stat. Ann. § 21-5601(a) (defining misdemeanor endangering a child as “knowingly and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s life, body or health may be endangered”).