State v. Cummings, 297 Kan. 716

Cummings operated a home daycare and cared for K.H., a 13‑month‑old, on March 25, 2008.
K.H. was placed in a car seat with only the top strap fastened and the door to the sleeping area left slightly ajar.
Cummings left the bathroom area, about 3–4 steps away, to prepare lunch, without visually checking on K.H. for 2–5 minutes.
K.H. was found dead from asphyxia due to ligature in the car seat; the State charged involuntary manslaughter based on endangering a child.
The jury instruction on endangering a child used PIK Crim. 3d 58.10 and did not define 'reasonable probability.'
Both the Court of Appeals and dissent noted deficiencies in the instruction; the Kansas Supreme Court ultimately reversed and remanded for a clarifying instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Definition of reasonable probability	Cummings: need explicit definition beyond risk assessment.	State: reasonable probability is clear and not needful of extra definition.	Ambiguity in reasonable probability; instruction erroneous; remand for clarifying instruction.
Preservation and review standard	Failure to object should not bar review where clearly erroneous.	Preservation rule under 22-3414(3) applies; only clearly erroneous instructions reviewed.	Two-step review applied; if clearly erroneous, reversal possible without objection.
Impact of instruction on verdict	Without clear standard, jury could convict from insufficient risk level; potential hindsight bias.	Jury is capable of applying a common-sense standard to reasonable probability.	Given ambiguity and lack of proof of increased risk, reversal warranted.

State v. Fisher, 230 Kan. 192, 631 P.2d 239 (1981) (upheld need for definite standard aligning with 'may' vs 'might'; substantial discussion of vagueness and reasonable probability)
State v. Wilson, 267 Kan. 550, 987 P.2d 1060 (1999) (common-sense interpretation; prohibition against overly expansive application)
State v. Sharp, 28 Kan. App. 2d 128, 13 P.3d 29 (2000) (rejected 'might' as insufficient; required definition of 'reasonable probability')
State v. Daniels, 278 Kan. 53, 91 P.3d 1147 (2004) (noted post-Sharp modification of the standard; discussed sufficiency of evidence)
State v. Adams, 292 Kan. 151, 254 P.3d 515 (2011) (defined 'reasonable probability' in the context of ineffective assistance standard)
Chavez v. New Mexico, 146 N.M. 434, 211 P.3d 891 (2009) (rejected strict probability; endorsed multifactor approach to risk)