Precedents Cited and Their Influence

• Prosecutorial latitude and argument:
  • State v. Coleman, 318 Kan. 296 (2024); State v. Brown, 316 Kan. 154 (2022): Prosecutors enjoy wide latitude to argue reasonable inferences from trial evidence.
  • State v. Mendez, 319 Kan. 718 (2024): Error occurs if argument relies on facts or inferences outside the record.
  • State v. Waldschmidt, 318 Kan. 633 (2024); State v. Bodine, 313 Kan. 378 (2021): Reinforce permissibility of inference-based argument.
  • Chapman v. California, 386 U.S. 18 (1967); State v. Sherman, 305 Kan. 88 (2016): Harmless-error standard applied if prosecutorial error is found.
• Invited error (prudential):
  • State v. Slusser, 317 Kan. 174 (2023): Invited error generally not reviewable.
  • State v. Fleming, 308 Kan. 689 (2018): Doctrine is prudential, not jurisdictional—court retains discretion.
• Evidence of prior crimes—K.S.A. 60-455:
  • State v. Molina, 299 Kan. 651 (2014); State v. Breeden, 297 Kan. 567 (2013): When prior-crimes evidence is admitted, a limiting instruction is strongly favored/required to restrict the jury’s use to non-propensity purposes.
• Jury-instruction standards:
  • State v. McLinn, 307 Kan. 307 (2018): Three-step instruction review (preservation, legal/factual appropriateness, prejudice).
  • State v. Hillard, 315 Kan. 732 (2022): Pattern/statutory instructions are generally legally proper if not misleading.
  • State v. Hilyard, 316 Kan. 326 (2022): No prejudice analysis if no error.
  • State v. Armstrong, 299 Kan. 405 (2014); State v. Norris, 226 Kan. 90 (1979): No need to define widely understood terms absent risk of jury confusion.
  • State v. Hambright, 318 Kan. 603 (2024): Words receive ordinary meaning unless the Legislature provides a definition.
• “Pursuit” context:
  • State v. Escobar, No. 112,538, 2016 WL 3144179 (Kan. App. 2016): COA drew on Black’s Law to define “pursuit” in a different subsection (accident-during-pursuit). Distinguished in Ervin both on subsection and felony-murder posture.
• Felony murder—res gestae and causation:
  • State v. Cameron, 300 Kan. 384 (2014); State v. Jacques, 270 Kan. 173 (2000): Killings within the res gestae include acts closely connected in time, distance, and causation—before, during, or after the underlying felony.
  • State v. Nesbitt, 308 Kan. 45 (2018): Extraordinary intervening events break causation only if unforeseeable.
• Verdict forms:
  • State v. Fraire, 312 Kan. 786 (2021); State v. Dotson, 319 Kan. 32 (2024): No error to list “guilty” before “not guilty.”
• Cumulative error:
  • State v. Showalter, 318 Kan. 338 (2024): Doctrine applies only if there are multiple established errors.
• Statutory interpretation and jail-time credit:
  • American Warrior, Inc. v. Board of Finney County Comm’rs, 319 Kan. 78 (2024): Plain-meaning canon—courts do not add or subtract statutory text.
  • State v. Hopkins, 317 Kan. 652 (2023): Overruled “solely on the charge” gloss on K.S.A. 21-6615(a); defendants receive credit for all time spent incarcerated pending disposition of the case.
  • State v. Lofton, 272 Kan. 216 (2001), and State v. Davis, 312 Kan. 259 (2020): Earlier “no duplicate credit” logic relied on by some courts—now displaced by Ervin’s plain-language holding under the pre-2024 statute.
  • State v. Feikert, 64 Kan. App. 2d 503 (2024): COA limited Hopkins in multiple-case, consecutive-sentence settings; Ervin disagrees and applies the statute as written.
  • Jarvis v. Kansas Dept. of Revenue, 312 Kan. 156 (2020): Courts interpret statutes; policy choices are for the Legislature.

Legal Reasoning

1) Prosecutorial Argument: Reasonable Inferences from Admitted Evidence

The prosecutor twice referenced that Ervin was “on bond for a prior flee and elude.” Defense contended no evidence supported this. The Court examined the full exchange with the interviewing officer: while the officer initially denied knowledge of the pending case, he immediately confirmed that, in the interview, Ervin said he was on bond and did not want to get in trouble because of it. In context, the “that” in the Q&A referred back to the pending flee-and-elude charge, allowing a reasonable inference that Ervin knew he faced that charge. Because argument may urge reasonable inferences grounded in the record, the statements were within the prosecutor’s wide latitude; thus, no error, and no need to reach harmlessness under Chapman.

2) K.S.A. 60-455 Limiting Instruction: Legally and Factually Appropriate

Having determined the record supported an inference that Ervin had a pending flee-and-elude case, the Court held a limiting instruction was appropriate. The instruction carefully stated that evidence “has been admitted tending to prove” a prior flee-and-elude and limited its use to permissible, non-propensity purposes—knowledge, motive, absence of mistake/accident. The “tending to prove” phrasing preserved the jury’s role to assess whether the evidence actually proved the prior act. The invited-error doctrine did not bar review; it is prudential, and the instruction had an adequate factual predicate and proper legal scope.

3) Reckless Second-Degree Murder Instruction: Statutory Text Suffices

Ervin argued the court diluted the recklessness requirement by not repeating or defining the “extreme indifference” element. The jury was instructed that second-degree murder required an “unintentional but reckless[]” killing “under circumstances that show extreme indifference to the value of human life,” and “recklessly” was defined verbatim from K.S.A. 21-5202(j). Because instructions tracked statutory language and were not misleading, they were legally proper. Adding definitions risked redundancy and confusion across counts that also used “reckless.” No error.

4) No Need to Define “Pursuit” in Flee/Elude

The charge required reckless driving “during a police pursuit” under K.S.A. 8-1568(b)(1)(C). Ervin sought a definition distinguishing “following” from “pursuit” and tying pursuit to active lights/sirens. The Court declined: “pursuit” is a commonly understood term; the statute uses ordinary meaning; and neither the statute nor precedent required a specialized definition. Moreover, the proposed instruction would have unduly emphasized the defense theory by embedding argumentative facts (e.g., sirens off equals no pursuit), which is improper. The State in argument already tied its theory to actions while lights/sirens were activated. No instructional error.

5) Felony Murder: Res Gestae and Causation Not Broken by Terminated Pursuit

The felony-murder statute, K.S.A. 21-5402(a)(2), encompasses killings committed “in the commission of, attempt to commit, or flight from” an inherently dangerous felony, here, flee/elude with reckless driving (K.S.A. 8-1568(b)(1)(C); K.S.A. 21-5402(c)(1)(R)). The Court emphasized two requirements:

• Res gestae: The death must be closely connected by time, distance, and causation to the underlying felony, and may occur before, during, or after it. The crash happened within 3–4 minutes of the initial command to stop, on the same thoroughfare, during uninterrupted flight.
• Causation/foreseeability: There must be a direct causal link; only extraordinary, unforeseeable intervening events break the chain. Running a red light at high speed while fleeing was foreseeable given the continuous, reckless flight, even after police terminated the active pursuit.

The Court distinguished Escobar (different subsection, focused on “accident during pursuit” to prove the underlying offense) and held the felony-murder analysis looks to the broader res gestae and causation framework. Viewed in the light most favorable to the State, a rational jury could find felony murder beyond a reasonable doubt.

6) Verdict Forms and Cumulative Error

Consistent with Fraire and Dotson, placing “guilty” before “not guilty” is not error. Because the Court found no trial errors, cumulative error was inapplicable.

7) Jail-Time Credit Under K.S.A. 21-6615(a): Plain Meaning Controls

The centerpiece of Ervin is the sentencing ruling. The pre-2024 version of K.S.A. 21-6615(a) states that a sentencing judge “shall” compute a sentence from a date “established to reflect and … computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant’s case.” Applying American Warrior’s plain-meaning rule, the Court refused to add a judicially created limitation barring “duplicate” credit when the defendant was also in custody on another case or when sentences are consecutive. Building on Hopkins—which rejected the “solely on the charge” gloss—the Court held:

K.S.A. 21-6615(a) allows a jail time credit for all time a defendant is incarcerated pending the disposition of the defendant’s case. A sentencing judge should thus allow credit for all days incarcerated on a case, regardless of whether the defendant received a credit for some or all that time against a sentence in another case.

The Court expressly declined to apply “absurdity” avoidance where the text is clear, rejecting the Court of Appeals’ reasoning in Feikert (and the reliance on Lofton and Davis’ earlier “no duplicate credit” rationale) that awarding such credit would produce “windfalls.” The Court also noted the Legislature amended K.S.A. 21-6615 in 2024; it did not address retroactivity and applied the pre-amendment statute as written.

Impact and Practical Consequences

A) Sentencing and Jail-Time Credit

• Immediate effect (pre-2024 statute): Defendants sentenced under the pre-2024 K.S.A. 21-6615(a) are entitled to credit for every day spent incarcerated pending disposition of each case—without apportionment—even where:
  • They were simultaneously held on another case;
  • They received credit for the same days in another case; or
  • The sentences are ordered to run consecutively.
• Administrative implications: The Court favored a straightforward calculation—count all days in custody pending disposition of the case—obviating complex allocations among cases and minimizing reliance on back-end adjustments by KDOC under K.A.R. 44-6-134.
• Legislative response: The 2024 amendments (L. 2024, ch. 96, §§ 7, 13) indicate legislative engagement with jail-credit policy. The Court left retroactivity and the application of amended text for another day.
• Action items for trial courts: In the judgment:
  • Specify the exact number of jail-credit days “pending disposition of the case;” and
  • Designate a sentence-begin date;
  • Avoid reducing credit based on credits awarded elsewhere when applying the pre-2024 statute.

B) Felony-Murder Prosecutions Arising from Police Flight

• End of pursuit is not dispositive: Termination of active pursuit (lights/sirens off) does not break felony-murder causation if the death is within the res gestae of the underlying felony and the fatal outcome is a foreseeable continuation of the flight.
• Foreseeability: High-speed flight through urban intersections makes collisions—including running red lights—foreseeable. Defendants cannot sever causation merely by pointing to pursuit termination or momentary distance between themselves and patrol units.

C) Jury Instructions and Trial Practice

• Pattern/statutory language: Safest course. Repetition or elaboration (e.g., redefining “extreme indifference” or “pursuit”) can confuse and risk one-sided emphasis.
• K.S.A. 60-455 limiting instructions: When prior-acts evidence is introduced—even by inference—the court should limit the jury’s use to proper purposes (knowledge, motive, absence of mistake/accident). “Tending to prove” is acceptable phrasing.
• Closing argument: Prosecutors may argue reasonable inferences from admitted testimony (e.g., defendant’s own statements about being on bond on a related offense). Defense counsel should object contemporaneously if the inference leaps beyond evidence.
• Verdict forms: No requirement to list “not guilty” first; Kansas precedent deems either order permissible.