445 P.3d 1132
Kan.2019Background
- On June 5, 2013, undercover officer Padron arranged a controlled buy of 8 oxycodone and 20 hydrocodone pills from Jennifer Curtis; Curtis texted that her "pops" (Cottrell) had the product.
- Cottrell (using the name "Randy") met Padron in a QuikTrip parking lot, exchanged a pill bottle for $350, and called the bottle an "8 and 20." Forensic testing confirmed the pills were oxycodone and hydrocodone.
- State charged Cottrell with distribution of hydrocodone, distribution of oxycodone, and conspiracy to distribute a controlled substance; jury convicted on all counts.
- The conspiracy instruction and charging document listed five overt acts (Curtis’s texts, Curtis contacting Cottrell, Cottrell’s appearance, Curtis waiting by truck, Curtis meeting Cottrell after sale). Defense did not object at trial and had at the instruction conference requested a "knowingly" culpable mental state for distribution.
- On appeal Cottrell argued (1) the multiple overt-act allegations required a unanimity instruction, (2) the overt acts created alternative means requiring super‑sufficiency, (3) the culpable mental state should be "intentionally," and (4) the evidence was insufficient to convict. The Kansas Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Cottrell) | Held |
|---|---|---|---|
| Whether listing several overt acts in conspiracy instruction required a unanimity (multiple acts) instruction | Single conspiracy alleged; multiple overt acts were in furtherance of that one agreement, so no multiple‑acts problem | Listing multiple overt acts created a multiple acts case requiring unanimity | Court held no multiple acts problem: multiple overt acts do not equal multiple conspiracies absent multiple agreements; no unanimity instruction required |
| Whether listing several overt acts created an alternative‑means problem requiring super‑sufficiency review | Conspiracy statute does not set alternative means; the instruction merely described factual scenarios; even if alternative, evidence supported each | Overt acts were alternative means and State failed to prove each one beyond a reasonable doubt | Court held a jury instruction listing multiple overt acts does not create alternative means; overruled Enriquez and affirmed no alternative‑means issue (and Cottrell invited any instruction error) |
| Proper culpable mental state for distribution: "knowingly" vs. "intentionally" | Parties agreed and the instruction given used "knowingly"; State argues invited error bars challenge | Argued on appeal that correct mental state is "intentionally" and "knowingly" was erroneous | Court applied invited‑error doctrine: Cottrell requested/accepted the "knowingly" instruction, so he cannot challenge it on appeal |
| Sufficiency of evidence (motion for acquittal) — agreement and knowledge elements | Circumstantial evidence (texts, conduct, in‑person coordination, Cottrell’s statements) supports conspiracy and knowledge | Claimed lack of direct evidence of an agreement and asserted mistake of fact about contents of bottle | Court held evidence, viewed in favor of the State, was sufficient to support conspiracy and knowing distribution; motion for acquittal properly denied |
Key Cases Cited
- State v. Butler, 307 Kan. 831 (clarifies conspiracy statute does not create alternative means and analyzes overt‑act instruction issues)
- State v. Brown, 295 Kan. 181 (distinguishes alternative means from descriptive factual scenarios in jury instructions)
- State v. Bailey, 292 Kan. 449 (defines multiple acts rule and unanimity requirement)
- State v. De La Torre, 300 Kan. 591 (explains test for whether jurors heard evidence of multiple acts)
- State v. Pham, 281 Kan. 1227 (discusses single continuing conspiracy concept)
- State v. Smith, 268 Kan. 222 (expresses caution about jury lists of overt acts and unanimity concerns)