State v. Farr

No. 127,357 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. MCKAINE TYSON FARR, Appellant. SYLLABUS BY THE COURT 1. Distribution of fentanyl is a crime under K.S.A. 21-5705(a)(1) and by extension distribution of fentanyl causing death is a crime under K.S.A. 21-5430(b). 2. The law of causation has two core elements: cause-in-fact and legal causation. Cause-in-fact requires proof that, but for the defendant's conduct, the result would not have occurred. Legal causation limits a defendant's liability to the reasonably foreseeable consequences of his or her conduct. 3. Requiring but-for causation for the crime of distributing a controlled substance causing death under K.S.A. 21-5430(b) does not foreclose the possibility of multiple contributing factors playing a role in producing an outcome. 1 4. Because there is no consequence under the Kansas Offender Registration Act for failing to notify the defendant of the registration requirement at the time of conviction, the failure to do so does not void the registration order. Appeal from Pottawatomie District Court; JEFFREY R. ELDER, judge. Oral argument held April 14, 2026. Opinion filed August 14, 2026. Affirmed. James M. Latta, of Kansas Appellate Defender Office, for appellant. Tyler W. Winslow, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee. Before WARNER, C.J., ARNOLD-BURGER, J., and LAURA JOHNSON-MCNISH, District Judge, assigned. ARNOLD-BURGER, J.: A jury convicted McKaine Tyson Farr of one count of distribution of a controlled substance causing death, based on evidence that Jayson Ebert died of a drug overdose after he purchased a controlled substance—fentanyl pills—from Farr. The forensic pathologist/medical examiner concluded that Ebert's cause of death was a combination of fentanyl and cocaine intoxication, but that fentanyl had a more significant effect on causing Ebert's death because it had a greater lethality and Ebert's physical condition was more consistent with an opioid overdose. At sentencing, the court imposed a 165-month prison sentence and ordered Farr to register for a term of 15 years under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Farr appeals his conviction and the court's registration order. After a careful review of the record and applicable law, we affirm Farr's conviction and registration requirement. 2  FACTUAL AND PROCEDURAL HISTORY In 2022, the State charged Farr with one count of distributing a controlled substance causing death, a felony. The charge stemmed from Farr selling fentanyl pills to Ebert in September 2021, after which Ebert died from a drug overdose less than 48 hours later due to a combination of "fentanyl and cocaine intoxication." At trial, Farr's defense primarily related to whether the fentanyl he distributed caused Ebert's death. The State presented a video of a recorded interview, as well as a transcript, during which Farr admitted that he sold fentanyl pills to Ebert before his death. So the trial evidence focused mainly on whether Ebert's death resulted solely from fentanyl use. To that end, the State presented expert testimony from a forensic toxicologist who confirmed that Ebert had fentanyl, norfentanyl (a fentanyl metabolite), and benzoylecgonine (a cocaine metabolite) in his system when he died. Another of the State's experts, the forensic pathologist who conducted Ebert's autopsy, testified that Ebert's cause of death was due to "combined fentanyl and cocaine intoxication." Yet he explained that Ebert's physical condition presented as more consistent with an opioid overdose than a cocaine overdose for various reasons. The forensic pathologist opined that "if it weren't for the fentanyl, I don't think Jayson Ebert would be dead." Farr presented expert testimony from a professor of pharmacology, who agreed with the stated cause of death. Yet the defense's expert explained that cocaine and fentanyl had a synergistic effect that increased their potency, so it was impossible to determine whether Ebert's use of fentanyl alone was an independently sufficient cause of death. 3  During the instruction conference, Farr objected to the district court's proposed elements instruction. In particular, Farr had submitted a proposed instruction advising the jury that "'[r]esulted from' means that the State must prove that Jason [sic] Ebert would not have died but-for his use of heroin [sic] distributed by McKaine Farr. It is not enough for the State to prove only that the use of heroin [sic] distributed by McKaine Farr contributed to Jason [sic] Ebert's death." The court rejected Farr's request, concluding that the "contributed to language" was not proper. The jury convicted Farr as charged. At sentencing, the district court imposed a 165-month prison sentence and ordered Farr to register under the KORA for 15 years. Farr timely appeals. ANALYSIS Farr raises several claims of error, consisting of seven issues in support of reversing his conviction and one relating to the district court's registration order. We will address each in turn, although some necessarily are combined. DISTRIBUTION OF A CONTROLLED SUBSTANCE CAUSING DEATH INCLUDES THE DISTRIBUTION OF FENTANYL According to Farr, K.S.A. 21-5705 (statute criminalizing unlawful cultivation or distribution of controlled substances) does not specifically list "fentanyl" within the types of controlled substances that are illegal to distribute in Kansas. From that premise, he makes the following claims: (1) distribution of fentanyl causing death is a "nonexistent crime," so the district court lacked subject matter jurisdiction; (2) even if distribution of fentanyl is a crime, the State failed to prove by sufficient evidence that the fentanyl distributed in this case met the applicable legal definition. 4  The district court had subject matter jurisdiction. District courts acquire subject matter jurisdiction in a criminal case only if the State has charged a crime recognized by a Kansas statute. See State v. Jordan, 317 Kan. 628, 643, 537 P.3d 443 (2023) (citing State v. Dunn, 304 Kan. 773, Syl. ¶ 2, 375 P.3d 332 [2016]). Farr argues that distribution of fentanyl causing death is a "nonexistent crime," so the district court lacked subject matter jurisdiction. Consideration of Farr's claim involves interpreting various Kansas statutes. We are guided in determining a statute's meaning by the overarching rule that the intent of the Legislature governs if that intent can be ascertained. We do that through a review of the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, the court should not speculate about the legislative intent behind that clear language and should refrain from reading something into the statute that is not readily found in its words. State v. Keys, 315 Kan. 690, 698, 510 P.3d 706 (2022). So we turn to the statute to divine its meaning. Distribution of fentanyl is a crime. Like Hansel and Gretel in the forest, we must follow several breadcrumbs to reach our conclusion that distribution of fentanyl is a crime. We begin with the charge. The State charged Farr with distribution of a controlled substance causing death under K.S.A. 21-5430(b): "Distribution of a controlled substance causing death is distributing a controlled substance in violation of K.S.A. 21-5705 . . . , when death results from the use of such controlled substance." But what is a controlled substance? The same statute defines it as having "the same meaning" as it is given in K.S.A. 21-5701. K.S.A. 21-5430(e)(1). 5  So we must follow that breadcrumb to see how K.SA. 2021 Supp. 21-5701 defines controlled substance. Under K.S.A. 2021 Supp. 21-5701(a), "'[c]ontrolled substance' means any drug, substance or immediate precursor included in any of the schedules designated in K.S.A. 65-4105, 65-4107, 65-4109, 65-4111 and 65-4113." As further explanation, the schedules referenced in this definition are part of the Kansas Uniform Controlled Substances Act, which itself defines "controlled substance" the same as above. K.S.A. 2021 Supp. 65-4101(f). Put simply, the drug schedules are directly incorporated into the statute criminalizing drug distribution through this shared definition. This leads us to the final breadcrumb. We must look to see if fentanyl is listed in any of the drug schedules listed. It is. Fentanyl is specifically listed as a Schedule II drug and further designated an opiate and prohibited under K.S.A. 65-4107(c)(9). We have arrived home. Fentanyl is a controlled substance. Even so, Farr asserts that K.S.A. 21-5430(b), the statute under which Farr was charged contains an additional qualifier that is the linchpin of his argument. Remember, the statute provides: "Distribution of a controlled substance causing death is distributing a controlled substance in violation of K.S.A. 21-5705." So he argues the distribution must violate K.S.A. 21-5705. We turn to that statute to see if he is right. Farr asserts the "only relevant part" of K.S.A. 21-5705 is subsection (a)(1), which provides: 6  "It shall be unlawful for any person to distribute or possess with the intent to distribute any of the following controlled substances or controlled substance analogs thereof: "(1)Opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107[.]" (Emphasis added.) Because fentanyl is not a stimulant designated in subsection (d)(1) amphetamine, (d)(3) methamphetamine, or (f)(1) precursors to both amphetamine and methamphetamine, Farr contends that distributing fentanyl is only unlawful under the statute if fentanyl falls under "[o]piates, opium or narcotic drugs." In Farr's view, the omission of fentanyl from these definitions also means it is not a narcotic drug or opiate for which distribution is criminalized by K.S.A. 21-5705(a)(1). Farr is correct that K.S.A. 21-5705 itself does not contain a definition for the terms "[o]piate," "opium," and "narcotic drug." Yet K.S.A. 2021 Supp. 21-5701, is the definitional section that expressly controls K.S.A. 21-5701 through K.S.A. 21-5717 and it does. "(l) 'Narcotic drug' means any of the following . . . : (1) Opium and opiate and any salt, compound, derivative or preparation of opium or opiate; .... "(m) 'Opiate' means any substance having an addiction-forming or addiction- sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability." K.S.A. 2021 Supp. 21-5701. See also K.S.A. 2021 Supp. 65-4101(dd), (ee) (defining terms identically). Yet as the parties both note, fentanyl is expressly designated as a Schedule II controlled substance under K.S.A. 65-4107(c)(9) within the category of "opiates." 7  Although Farr insists the Legislature only incorporated specific portions of the drug schedules into K.S.A. 21-5705, he is wrong. The statute broadly criminalizes unlawful distribution of controlled substances, which are statutorily defined by reference to the drug schedules. K.S.A. 2021 Supp. 21-5701(a). By designating fentanyl as a Schedule II controlled substance and describing it as an opiate, the Legislature clearly intended the specific definitions of those terms to apply. Moreover, the Kansas Supreme Court's decision in State v. Brown, 321 Kan. 1, 573 P.3d 237 (2025), is instructive, if not controlling. In that case, the court held: "While the presence of THC in a substance may be relevant to a fact-finder's determination of whether a substance is marijuana, '[p]roof of the presence of THC is not required to meet the statutory definition of marijuana.'" 321 Kan. at 8. To reach that conclusion, the court adopted an identical rationale as the one expressed above, stating: "As discussed, the State charged Brown with first-degree felony murder with distribution of marijuana as the predicate felony. K.S.A. 21-5705(a)(4) criminalizes the distribution of controlled substances: 'It shall be unlawful for any person to distribute . . . any of the following controlled substances or controlled substance analogs thereof: [including] any hallucinogenic drug designated in subsection (d) of K.S.A. 65-4105.' And K.S.A. 65- 4105(d)(17) lists 'Marijuana' as a hallucinogenic drug. Thus, the State was required to prove that Brown distributed marijuana." 321 Kan. at 8. Accordingly, we find that distribution of fentanyl is criminalized by K.S.A. 21- 5705(a)(1), and by extension that distribution of fentanyl causing death is criminalized by K.S.A. 21-5430(b). Thus, the State correctly charged Farr with a Kansas crime, and the district court had subject matter jurisdiction over the charged offense. 8  There was sufficient evidence to show that Farr distributed a controlled substance. As an alternative argument, Farr contends that the State failed to prove that the fentanyl he distributed was the type of controlled substance criminalized by K.S.A. 21- 5705(a)(1). When a defendant challenges the sufficiency of the evidence in a criminal case, appellate courts view the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The court will not reweigh or resolve evidentiary conflicts or pass on the credibility of witnesses. State v. Mendez, 319 Kan. 718, 723, 559 P.3d 792 (2024). As above, this court exercises unlimited review over questions of statutory interpretation. State v. Betts, 316 Kan. 191, 197, 514 P.3d 341 (2022). To convict an individual of a crime, the State must prove to the trier of fact beyond a reasonable doubt of the existence of every element of the offense. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). As in the previous section, the crux of Farr's sufficiency argument is that the State failed to prove fentanyl meets any of the precise statutory definitions of "[o]piates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107" as criminalized in K.S.A. 21-5705(a)(1). But as explained above, Brown effectively forecloses Farr's argument. Brown, 321 Kan. at 8. And although not mentioned by either party, this court recently addressed a similar argument in State v. Cantu, 66 Kan. App. 2d 274, 580 P.3d 1270 (2025), rev. denied 321 Kan. 791 (2026). In that case, the defendant raised a sufficiency of the evidence claim to challenge his conviction for unlawful possession of methamphetamine. He argued that despite the designation of methamphetamine as a Schedule II controlled 9 substance "'having a potential for abuse associated with a stimulant effect on the central nervous system,'" the State still needed to prove that the methamphetamine he possessed met that same description as an element of the offense. 66 Kan. App. 2d at 277. In line with unpublished decisions from previous panels, this court rejected the defendant's interpretation to hold that the State needed only to prove that the defendant possessed methamphetamine to sustain the conviction. 66 Kan. App. 2d at 278-79. Proving that the substance in the defendant's possession was methamphetamine was enough because "it would be redundant to require the State to prove qualities of methamphetamine that are already incorporated into the statute's definition of the substance." 66 Kan. App. 2d at 279. While Brown and Cantu involved different crimes and different types of controlled substances, the same rationale applies. As explained in the previous issue, the Legislature designated fentanyl as a Schedule II controlled substance, and particularly categorized it as an opiate, leading to the logical conclusion that the unlawful distribution of fentanyl is prohibited under K.S.A. 21-5705(a)(1). But more importantly, that designation and categorization shows the Legislature has already signified its intent to treat fentanyl as a "substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction- forming or addiction-sustaining liability." K.S.A. 2021 Supp. 21-5701(m). Requiring the State to prove that the fentanyl Farr distributed to Ebert—which Farr readily admitted— had the addictive qualities that have already been statutorily defined would be redundant. In short, the State only needed to prove that Farr distributed fentanyl in violation of K.S.A. 21-5705(a)(1) to satisfy that element of the charged offense of distribution of a controlled substance causing death. Because Farr admitted he sold fentanyl to Ebert, we find there was sufficient evidence to support that element of the offense. 10 THE DISTRICT COURT DID NOT ERR BY FAILING TO INSTRUCT THE JURY TO CONSIDER WHETHER FARR DISTRIBUTED A CONTROLLED SUBSTANCE Farr also contests his distribution of a controlled substance causing death conviction by challenging the jury instruction, relying on the same underlying argument as addressed above. Thus, he contends the elements instruction for the charge was legally infirm because it omitted the precise legal definitions of "[o]piates, opium or narcotic drugs." Farr does not establish that he is entitled to relief on this point. To start, a review of the record shows that Farr invited the error that forms the basis of his instructional error claim. The invited-error doctrine prevents a party who has led the district court into error from complaining of that error on appeal. State v. Roberts, 314 Kan. 835, 846, 503 P.3d 227 (2022). Whether invited error applies is a question of law subject to unlimited review. State v. Douglas, 313 Kan. 704, 706, 490 P.3d 34 (2021). A party's failure to object to a proposed instruction does not automatically trigger invited error. See State v. Fleming, 308 Kan. 689, 701-02, 423 P.3d 506 (2018). Nor does it automatically apply every time a party requests an instruction and then claims error on appeal. 308 Kan. 689, Syl. ¶ 4. The Kansas Supreme Court has, however, found invited error when the party proposing an instruction could have ascertained the instructional error at the time. 308 Kan. at 703; State v. Brown, 306 Kan. 1145, 1166, 401 P.3d 611 (2017) (defendant invited error by proposing pretrial instruction that defined an offense more broadly than charged by the State). Here, the district court gave a jury instruction on the elements of the charged offense that was essentially identical to the version submitted by Farr. About a month before trial, Farr submitted the following proposed instruction that was modeled after PIK Crim. 4th 54.201 (2025 Supp.): 11  "The defendant is charged with unlawfully distributing a controlled substance causing death. The defendant pleads not guilty. "To establish this charge, each of the following claims must be proved: "1) The defendant distributed fentanyl. "2) The death of Jayson Ebert result [sic] from his use of fentanyl distributed by the defendant. "3) This act occurred on or between the 3rd day of September, 2021 and the 5th day of September, 2021 in Pottawatomie County, Kansas. "It is not a defense that Jayson Ebert contributed to his own death by using the controlled substance. "'Distribute' means the actual, constructive, or attempted transfer of an item from one person to another, whether or not there is an agency relationship between them. 'Distributed' includes sale, offer for sale, or any act that causes an item to be transferred from one person to another. "'Distribute' does not include acts of administering, dispensing, or prescribing a controlled substance as authorized by law. "'Resulted from' means that the State must prove that Jason [sic] Ebert would not have died but-for his use of heroin distributed by McKaine Farr. It is not enough for the State to prove only that the use of heroin distributed by McKaine Farr contributed to Jason [sic] Ebert's death. "'Use' means injection, inhalation, ingestion, or other introduction into the body." There are no material differences between Farr's proposed instruction and the final jury instruction, at least with respect to his current claim of error. The challenged instruction followed the standard pattern instruction, which also does not include specific legal definitions for the terms Farr claims should have been given. See State v. Zeiner, 316 Kan. 346, 353, 515 P.3d 736 (2022) (noting that the Kansas Supreme Court "'strongly recommend[s] the use of PIK instructions, which knowledgeable committees develop to bring accuracy, clarity, and uniformity to instructions'"). 12  Consequently, we decline to consider any complaint of error related to the omission of the precise legal definitions of "[o]piates, opium or narcotic drugs." DISTRIBUTION OF A CONTROLLED SUBSTANCE CAUSING DEATH DOES NOT REQUIRE THE CONTROLLED SUBSTANCE TO BE THE INDEPENDENTLY SUFFICIENT CAUSE OF DEATH Farr's next two issues are also based on a similar underlying argument, which is that the State needed to prove the fentanyl was an independently sufficient cause of death to obtain a conviction for distribution of a controlled substance causing death. Accordingly, Farr argues his conviction must be reversed because: (1) there was insufficient evidence to prove that fentanyl alone would have caused Ebert's death; and (2) the district court erred by refusing to give Farr's proposed instruction on this point. There was sufficient evidence to establish that Ebert's death resulted from using fentanyl. When a defendant challenges the sufficiency of the evidence in a criminal case, appellate courts view the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The court will not reweigh or resolve evidentiary conflicts or pass on the credibility of witnesses. Mendez, 319 Kan. at 723. As above, this court exercises unlimited review over questions of statutory interpretation. Betts, 316 Kan. at 197. For this issue, Farr's sufficiency argument is directed at the element requiring the State to prove Ebert's death "results from" his use of the fentanyl distributed by Farr. K.S.A. 2021 Supp. 21-5430(b). To satisfy this element, the district court instructed the jury, in relevant part: "2. The death of Jayson Ebert resulted from his use of the Fentanyl distributed by the defendant. 13  .... "Death 'resulted from' use of Fentanyl if but for its' use death would not have occurred and death was a reasonably foreseeable consequence of the use of Fentenyl [sic]." Farr primarily takes issue with the district court's instruction on the applicable law, but that brings up an interesting point about his sufficiency claim. Appellate courts will often look to the jury instructions to determine the elements of the offense that the State needed to prove, especially when the instructions define the crime more narrowly than the charging document. State v. Couch, 317 Kan. 566, 582, 533 P.3d 630 (2023), abrogated on other grounds by State v. Garcia-Martinez, 318 Kan. 681, 546 P.3d 750 (2024). But the Kansas Supreme Court has departed from that approach when the elements in the jury instruction deviate from the statutory elements listed in the charging document, i.e., by setting out the elements of a different subsection of the charged offense. Couch, 317 Kan. at 582 (citing State v. Fitzgerald, 308 Kan. 659, 423 P.3d 497 [2018]). But Farr is not arguing that the elements in the jury instruction are different from the charged offense, like in Couch or Fitzgerald. Instead, he contends that the court erroneously instructed the jury on the applicable law for a particular element of the charged offense, then proceeds to argue that the State failed to prove the element was met under a legal standard never considered by the jury. Put another way, he conflates a sufficiency of the evidence claim with a jury instruction claim because the foundation of his sufficiency argument is that the jury was improperly instructed. To the extent that Farr's argument can be parsed to a sufficiency of the evidence claim, he contends the State failed to prove that Ebert's use of the fentanyl distributed by Farr was an independently sufficient cause of Ebert's death. As support, he asserts that 14 the plain language of K.S.A. 21-5430(b) mandates that the victim's death "result[] from" their use of a single controlled substance. There are no Kansas appellate decisions interpreting K.S.A. 21-5430(b). There is, however, a United States Supreme Court decision interpreting identical language in the federal counterpart to the Kansas statute. See Burrage v. United States, 571 U.S. 204, 134 S. Ct. 881, 187 L. Ed. 2d 715 (2014). In that case, the Court held "that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim's death . . . , a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury." 571 U.S. at 218-19. While Farr is correct that this court is not necessarily bound by that holding, there is no discernable difference between the "results from" language found in K.S.A. 21- 5430(b) and its federal counterpart discussed in Burrage. But as Farr notes, the Kansas Supreme Court has said the traditional notion of proximate cause, even in a criminal case—albeit involving the connection between the crime and the damages for purposes of restitution—consists of both cause-in-fact and legal causation. State v. Arnett, 307 Kan. 648, 655, 413 P.3d 787 (2018). In Arnett, our Supreme Court held that cause-in-fact requires proof that "it is more likely than not that, but for the defendant's conduct, the result would not have occurred." 307 Kan. at 654. Legal causation, on the other hand, limits a defendant's liability to "when it was foreseeable that the defendant's conduct might have created a risk of harm and the result of that conduct and any contributing causes were foreseeable." 307 Kan. at 655. Although not in the criminal context, both this court and the Kansas Supreme Court have relied on Burrage to explain the cause-in-fact standard, which is also referred to as actual causation. See, e.g., Johnson v. Bass Pro Outdoor World, 320 Kan. 325, 344, 15 567 P.3d 810 (2025) (holding in products liability case that a gun owner's volitional act in pulling the trigger while disassembling a gun was the but-for cause of the gun's discharge); Allen v. Marysville Mutual Insurance Co., 54 Kan. App. 2d 730, 737, 404 P.3d 364 (2017) ("'Results from' at a minimum sets out a requirement of actual causation."). Put simply, based on our Supreme Court precedent, we must interpret the phrase "results from" to require both actual and legal causation in the context of K.S.A. 21-5430(b). We find there was sufficient evidence to prove that the fentanyl he distributed in this case was the proximate cause of Ebert's death. While true that Ebert's cause of death was officially documented as a combination of fentanyl and cocaine intoxication, that was not the extent of the evidence on this point. The State's forensic pathologist expert offered multiple reasons why he believed fentanyl was the cause-in-fact of Ebert's death, which included its greater lethality, the physical conditions being more consistent with an opioid overdose rather than a cocaine overdose, and because Ebert had lower levels of cocaine metabolite in his body than expected with a cocaine overdose. Further, the State's expert testified that Ebert had no active cocaine in his body, which could suggest usage any time within the week before his death, and that it was important to list both drugs as contributing to the cause of death since they were both present. A rational factfinder viewing this evidence in the State's favor could conclude that Ebert's death resulted from his use of fentanyl, given that it presented as an opioid overdose, which would mean that it was an independently sufficient cause of Ebert's death. The jury also heard evidence as to legal causation. Farr admitted in a recorded interview with a KBI agent that he knew the pills he sold Ebert contained fentanyl and that taking an entire pill "is a death wish." So there was sufficient evidence to establish that it was foreseeable that selling pills to someone that contained fentanyl could result in 16 death. Therefore, the State presented sufficient evidence to establish that Ebert's death resulted from using fentanyl that Farr sold him. It was not reversible error for the district court to refuse to give Farr's proposed instruction. Farr argues that the court erred in failing to provide the elements instruction he requested. This goes hand in hand with this argument that there was insufficient evidence of causation to convict him. Farr proposed the following language for the elements instruction: "To establish this charge, each of the following claims must be proved: .... "2) The death of Jayson Ebert result [sic] from his use of fentanyl distributed by the defendant. .... "'Resulted from' means that the State must prove that Jason [sic] Ebert would not have died but-for his use of [fentanyl] distributed by McKaine Farr. It is not enough for the State to prove only that the use of [fentanyl] distributed by McKaine Farr contributed to Jason [sic] Ebert's death." (Emphasis added.) The district court declined Farr's request, instead instructing the jury as follows: "To establish this charge, each of the following claims must be proved: .... "2. The death of Jayson Ebert resulted from his use of the Fentanyl distributed by the defendant. .... "Death 'resulted from' use of Fentanyl if but for its' use death would not have occurred and death was a reasonably foreseeable consequence of the use of Fentenyl [sic]." 17  This court analyzes jury instruction issues using a well-known three-step process: (1) determining whether the appellate court can or should review the issue, in other words, whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, that is, whether the error can be considered harmless. State v. Holley, 313 Kan. 249, 253, 485 P.3d 614 (2021). Farr clearly preserved this issue for review by requesting an instruction that was denied. So we move to the merits of his claim. Farr argues that the instruction given by the district court was legally inappropriate. He contends the omission of the "contributed to" language in his proposed instruction was legally erroneous because Burrage also held that the resulting death cannot be from "a combination of factors to which drug use merely contributed." Burrage, 571 U.S. at 216. Farr is correct that the Court in Burrage rejected the Government's permissive interpretation of the "results from" language "under which use of a drug distributed by the defendant need not be a but-for cause of death, nor even independently sufficient to cause death, so long as it contributes to an aggregate force (such as mixed-drug intoxication) that is itself a but-for cause of death." (Emphases added.) 571 U.S. at 214- 16. But the primary reason the Court was not convinced to adopt the Government's interpretation stemmed from the language chosen by Congress in enacting the statute. 571 U.S. at 216 ("Congress could have written § 841[b][1][C] to impose a mandatory minimum when the underlying crime 'contributes to' death or serious bodily injury, or adopted a modified causation test tailored to cases involving concurrent causes. . . . It chose instead to use language that imports but-for causality."). 18  But the district court's jury instruction accurately recited the use of "results from" language in K.S.A. 21-5430(b) and added the State was required to prove both types of causation—cause in fact ("but for its use death would not have occurred") and legal causation ("death was a reasonably foreseeable consequence"). See Arnett, 307 Kan. at 654-55. And more to the point, requiring but-for causation does not foreclose the possibility of multiple contributing factors playing a role in producing an outcome. Stated another way, an event can have multiple but-for causes. Burnette v. Eubanks, 308 Kan. 838, Syl. ¶ 3, 425 P.3d 343 (2018) ("Any perceived distinction between the phrases 'causing an event' and 'contributing to an event' is a distinction without a difference."). Although Farr's proposed instruction may have provided some clarity for the jury, the but-for causation instruction already encompassed the concept that fentanyl needed to cause Ebert's death. Accordingly, we find that the challenged instruction was legally appropriate, which means no instructional error occurred. In sum, we find Farr has also failed to show he is entitled to reversal of his conviction for distribution of a controlled substance causing death on the grounds that the causation element was not met. EVEN IF THE DISTRICT COURT ERRED BY ADMITTING EVIDENCE OF FARR'S PAST MISCONDUCT, WE FIND THE ERROR HARMLESS Farr next argues the district court erred by admitting evidence that he previously sold fentanyl pills to another person, who overdosed on them. To begin, the State does not dispute that Farr preserved his evidentiary challenge for appeal, and the record confirms as much. 19  The threshold question on the admission or exclusion of evidence is whether the evidence is relevant. State v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021). Relevant evidence means it is "evidence having any tendency in reason to prove any material fact." K.S.A. 60-401(b). Relevance has two elements: a materiality element and probative element. 313 Kan. at 237. Evidence is material when the fact it supports is disputed or at issue in the case, and evidence is probative if it tends to prove a material fact. State v. Shields, 315 Kan. 814, 831, 511 P.3d 931 (2022). Appellate courts review materiality using a de novo standard of review, but review whether evidence is probative under an abuse of discretion standard. State v. Alfaro-Valleda, 314 Kan. 526, 533, 502 P.3d 66 (2022). Farr contends the evidence that he previously sold fentanyl pills to Braden McMillan, who overdosed on those pills but survived, was not relevant because other evidence established that death was a reasonably foreseeable consequence of using fentanyl. He points to the statements he made during a recorded interview with a KBI agent, admitting that he knew the pills he sold Ebert contained fentanyl and that taking an entire pill "is a death wish." Farr also asserts that the jurors could use their common knowledge to conclude that death was a reasonable and foreseeable consequence of using fentanyl. Farr acknowledges that "[t]he State 'had the burden to prove beyond a reasonable doubt all elements of the crime charged, including the fact and manner of the death . . . even if those limited aspects of the case were undisputed.'" State v. D.W., 318 Kan. 575, 579, 545 P.3d 26 (2024). Yet Farr is correct that the State already proved the fact that death was a reasonably foreseeable consequence of using fentanyl through his admissions, so additional testimony from McMillan on that point was unnecessary and cumulative. 20  But we need not decide this question, which would require a reevaluation of the district court's perception of the evidence at trial. Even if we presume the evidence should not have been admitted, we still must uphold Farr's conviction if that error was harmless. An error is harmless when "there is a 'reasonable probability that error will or did affect the outcome of the trial in light of the entire record.'" State v. McCullough, 293 Kan. 970, 981-82, 270 P.3d 1142 (2012). According to Farr, allowing the State to present this evidence created the implication that he was continually "tricking people into unknowingly buying fentanyl" and made him look especially cruel in the eyes of the jury. The court did give a limiting instruction that directed the jury to consider the McMillan evidence solely as evidence that Ebert's death was a reasonably foreseeable consequence from using the fentanyl. And even without the additional evidence related to McMillan's overdose, it was still undisputed that Farr admitted he sold his friend fentanyl knowing that it was deadly if taken in excess. Based on the totality of evidence presented at trial, we find there is no reasonable probability that the jury would have acquitted him in the absence of the evidence of Farr's prior acts. THE PROSECUTOR DID NOT COMMIT REVERSIBLE ERROR BY MAKING MISSTATEMENTS OF FACT AND LAW Farr next argues he did not receive a fair trial because of statements made by the prosecutor during opening statements and closing arguments. He identifies three instances of prosecutorial error: (1) emphasizing Ebert