Facts
- An undercover officer arranged by text to buy “8 oxycodone pills and 20 hydrocodone pills” through Jennifer Curtis at a convenience-store parking lot.
- Curtis indicated she was waiting on “mah pops,” and a blue pickup arrived; Curtis spoke with the driver, Ronald Cottrell.
- Curtis asked the officer to change the meeting location; the officer refused.
- Cottrell exited his truck, entered the officer’s car, and exchanged a pill bottle for $350; the exchange was recorded on video and lasted about 30 seconds.
- Cottrell described the bottle as an “8 and 20”; lab testing confirmed eight oxycodone and twenty hydrocodone pills.
- The State charged Cottrell with distribution of hydrocodone, distribution of oxycodone, and conspiracy to distribute a controlled substance.
- The conspiracy charge and instruction listed five overt acts focused on Curtis’ communications and brokering role and Cottrell’s arrival and participation in the sale.
- Cottrell testified he did not know the bottle contained drugs and claimed he was only helping Curtis repay a debt; the jury convicted him on all counts.
Issues
- Whether listing several overt acts in a conspiracy instruction created a multiple-acts case requiring a specific jury unanimity instruction or prosecutorial election.
- Whether listing several overt acts created alternative means of committing conspiracy, requiring sufficient evidence for each listed act.
- Whether any instructional error was barred by the invited-error doctrine because the defense requested or agreed to the instruction.
- Whether the evidence was insufficient on conspiracy such that the district court should have granted a judgment of acquittal.
Decision
- The convictions were affirmed.
- The instruction’s five overt acts described steps in a single conspiracy, not multiple acts requiring unanimity protections.
- The listed overt acts did not create alternative means; they were factual ways to prove the single statutory overt-act element.
- Any arguable defect in the conspiracy instruction was invited error because the defense affirmatively participated in or approved the instruction.
- Viewing the evidence in the light most favorable to the State, a rational jury could find an agreement to distribute controlled substances and at least one overt act in furtherance of that agreement beyond a reasonable doubt.
Legal Principles
- A multiple-acts case involves legally and factually separate incidents, each of which could independently satisfy the charged offense; multiple overt acts committed to advance one agreement do not transform a single conspiracy into multiple acts of conspiracy.
- Alternative means are legislatively defined, distinct material elements; factual descriptions of how an element may be proved (such as examples of overt acts) do not create alternative means.
- Under K.S.A. 21-5302(a), conspiracy requires (1) an agreement to commit or assist in committing a crime and (2) an overt act in furtherance of the conspiracy by the defendant or a coconspirator; proof of at least one overt act is sufficient.
- A party who requests or affirmatively agrees to a jury instruction generally may not claim reversible error based on that instruction on appeal.
- On sufficiency review and motions for acquittal, the question is whether, construing the evidence in favor of the State, a rational fact-finder could find guilt beyond a reasonable doubt.
Conclusion
The court held that enumerating several overt acts in a conspiracy instruction neither triggers multiple-acts unanimity requirements nor creates alternative means, and it affirmed Cottrell’s conspiracy and distribution convictions because the defense invited any instructional defect and the evidence supported an agreement and at least one overt act.