State v. Cottrell , 445 P.3d 1132 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 114,635
STATE OF KANSAS,
Appellee,
v.
RONALD COTTRELL,
Appellant.
SYLLABUS BY THE COURT
1.
Multiple acts are legally and factually separate incidents that each independently
satisfy the elements of the charged offense.
2.
A single conspiracy consists of one agreement, though there may be one or more
overt acts committed in furtherance of that agreement. On the facts of this case, a jury
instruction listing several overt acts committed in furtherance of a single conspiracy did
not present multiple acts of conspiracy.
3.
Alternative means are legislatively determined, distinct, material elements of a
crime, as opposed to descriptions of the material elements or of the factual circumstances
that would prove the crime.
1
4.
A jury instruction listing more than one overt act in furtherance of a conspiracy
does not create alternative means. Instead, such an instruction merely describes the
factual scenarios that could prove the material element of an overt act.
Review of the judgment of the Court of Appeals in 53 Kan. App. 2d 425, 390 P.3d 44 (2017).
Appeal from Sedgwick District Court; ROBB W. RUMSEY, judge. Opinion filed July 19, 2019. Judgment
of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Rick Kittel, of Kansas Appellate Defender Office, was on the brief for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.
The opinion of the court was delivered by
STEGALL, J.: Ronald Cottrell sold prescription narcotics to an undercover
detective in a QuikTrip parking lot in Sedgwick County. A jury convicted him of
distributing of a controlled substance and conspiring to distribute a controlled substance.
On appeal, he claims the conspiracy jury instruction, which alleged five overt acts in
furtherance of the conspiracy, presented either a multiple acts or alternative means
problem. He also challenges the denial of his motion for acquittal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 5, 2013, Eduardo Padron, an undercover detective with the Wichita
Police Department, set up a controlled drug buy from Jennifer Curtis based on a tip that
she was selling prescription drugs illegally. Padron texted Curtis and asked "what kind of
pills" she sold. Curtis responded, "Ok well my father is the one with the product id have
to get ahold of him what ya need he has everything." Pardon requested 8 oxycodone pills
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and 20 hydrocodone pills, which are prescription narcotics. Before long, Curtis texted
back, "He's got yours ready when you are[.]" They decided to meet at a QuikTrip later
that day, around 5 p.m.
Undercover officers conducted surveillance of the QuikTrip before Padron arrived.
One officer observed several people lingering outside the QuikTrip who appeared to be
watching for law enforcement, and two of them spoke with Curtis. The officer described
this as "counter surveillance" activity. When Padron arrived, he parked his unmarked car
in a parking lot next to the QuikTrip. The car was equipped with an interior video
camera.
Padron notified Curtis of his location, but she did not approach his vehicle.
Instead, she stayed near the QuikTrip and texted Padron, "Still waitin on mah pops."
About 20 minutes later, a blue pickup truck arrived and parked between Padron's car and
the QuikTrip. Curtis walked over to the truck and contacted the driver. As she stood
beside the truck, she called Padron and asked him to relocate to the post office. Padron
refused to do so, and in the background of the call, he heard a male voice say "Fuck it,
let's just do it here."
At this point, Cottrell exited the driver's side of the truck, walked over to Padron's
vehicle, and entered the passenger side. Inside Patron's vehicle, Cottrell exchanged a pill
bottle for $350 cash. Padron's video camera captured the exchange, which lasted about 30
seconds. The video was played for the jury, but only the audio recording is included on
the record on appeal. The audio is fuzzy at times, but it is clear that Cottrell introduced
himself as "Randy"; said he did not usually meet people; called Curtis his "daughter"; and
described the bottle as an "8 and 20." Then Cottrell returned to his truck, spoke with
Curtis for a little while, and drove away. A forensic scientist later testified that the pill
bottle contained 20 hydrocodone pills and 8 oxycodone pills.
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About a week later, Padron texted Curtis about buying more oxycodone. Curtis
replied, "[L]emme get with my pops how many u need?" Padron requested 10 pills. He
also asked Curtis to let him know when she had the pills in her possession. But Curtis
hesitated and explained, "My dad wont lemme that cuz its his business I just bring in the
clientel I handle customers only no money no merch." Eventually, the second sale fell
through because Curtis stopped responding to Padron's texts.
The State charged Cottrell with distribution of hydrocodone, distribution of
oxycodone, and conspiracy to distribute a controlled substance. At trial, the State called
three witnesses: Padron, a surveillance officer, and the forensic scientist who identified
the drugs. When the State rested, defense counsel moved for judgment of acquittal,
claiming the State presented insufficient evidence of the charges. The court denied the
motion.
The defense called Cottrell as its only witness. He insisted that he did not know
what was inside the bottle and that he blindly followed Curtis' directions because he
needed the money. He explained that Curtis and his son were dating before his son's
death, and after his death, Cottrell loaned her money to pay the bills. He testified that
Curtis told him to come to QuikTrip to pick up the money she owed him; when he
arrived, she told him to exchange the pill bottle for the money; and he naïvely complied
to get his repayment.
Defense counsel asked why Cottrell called the bottle "8 and 20" in his
conversation with Padron. Cottrell explained that he learned the phrase from Curtis—
when he asked her what the bottle was, she said it was "8 and 20." Cottrell claimed he did
not know what this meant, but he exchanged the bottle anyway because, in his words, he
"got mad and thought in the split second and went, fuck it, you know." On cross-
examination, the prosecutor held up the pill bottle and asked Cottrell if he could see what
was inside it. Cottrell admitted that he could see pills. The prosecutor also asked if
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Cottrell kept the money Padron gave him. Cottrell said he handed the money straight to
Curtis and did not keep any of it.
Two jury instructions are relevant to this appeal. First, the charging document and
the conspiracy jury instruction alleged the same five overt acts committed in furtherance
of the conspiracy to distribute a controlled substance:
"1. JENNIFER M. CURTIS responded to Officer Padron's text inquiry with details
on prices and where to go to conclude the sale of hydrocodone and oxycodone.
"2. JENNIFER M. CURTIS contacted RONALD D. COTTRELL, JR., with the sales
order she obtained from Officer Padrone [sic] and had, RONALD D. COTTRELL,
JR., appear at the designated time and place with the pills Officer Padron ordered.
"3. RONALD D. COTTRELL, JR., went to the transaction site which JENNIFER M.
CURTIS had brokered between Officer Padron and RONALD D. COTTRELL, JR.
"4. JENNIFER M. CURTIS waited by RONALD D. COTTRELL, JR.'s vehicle
while he went to Officer Padron's vehicle and conducted the exchange brokered by
JENNIFER M. CURTIS.
"5. JENNIFER M. CURTIS met with RONALD D. COTTRELL, JR. at his vehicle
after the brokered transaction with Officer Padron was completed."
Second, the culpable mental state instruction stated: "As it relates to Distribution
of a Controlled Substance, the State must prove the defendant committed the crimes
knowingly." (Emphasis added.) At the time, Cottrell did not object to these instructions,
and he even asked for "knowingly" to be listed as the culpable mental state for
distribution of a controlled substance.
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In the end, the jury found Cottrell guilty on all counts. At sentencing, Cottrell
renewed his motion for judgment of acquittal, but the court denied it again. The
Sedgwick County District Court sentenced Cottrell to a total of 68 months' imprisonment
with 36 months' postrelease supervision.
On appeal, Cottrell argues: (1) The district court erred when it failed to give a
unanimity instruction because the State alleged multiple overt acts in furtherance of the
conspiracy; (2) alternatively, the overt acts alleged were alternative means to commit the
crime of conspiracy, and the State failed to produce sufficient evidence to support each
one; (3) the district court erred when it instructed the jury that "knowingly" was the
culpable mental state for distribution of a controlled substance; and (4) the district court
erred when it denied his motion for judgment of acquittal because the evidence was
insufficient to support the charges.
The Court of Appeals affirmed, holding that no unanimity instruction was required
because the allegation of several overt acts in furtherance of one conspiracy does not
present a multiple acts case. State v. Cottrell, 53 Kan. App. 2d 425, Syl. ¶ 3, 390 P.3d 44(2017). Similarly, the panel held that alleged overt acts committed in furtherance of one
conspiracy are not alternative means requiring jury unanimity. 53 Kan. App. 2d 425,
Syl. ¶ 6. Finally, the panel held that Cottrell invited any error by requesting the
challenged culpable mental state instruction and the district court did not err in denying
his motion for judgment of acquittal. 53 Kan. App. 2d at 436-37, 440-41. We granted
Cottrell's petition to review each of these holdings.
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ANALYSIS
No unanimity instruction was required because alleging several overt acts in furtherance
of one conspiracy does not present a multiple acts case.
Cottrell claims this is a multiple acts case because the State alleged several overt
acts in furtherance of the conspiracy, as reflected in the jury instruction, and thus a
unanimity instruction was required to ensure the jury agreed about which overt act
supported the crime. The State argues there is no multiple acts problem because it
presented evidence of only one conspiracy—to sell the "8 and 20" drugs to Padron—and
the overt acts supporting that conspiracy are not separate crimes.
"When several acts are alleged, any of which could constitute the crime charged,
the court is presented with a multiple acts case." State v. Bailey, 292 Kan. 449, 458, 255
P.3d 19 (2011). In a multiple acts case,
"'the jury must be unanimous as to which act or incident constitutes the crime. To ensure
jury unanimity in multiple acts cases, courts require that either the State elect the
particular criminal act upon which it will rely for conviction or that the district court
instruct the jury that all jurors must agree that the same underlying criminal act has been
proved beyond a reasonable doubt.'" 292 Kan. at 458 (quoting State v. Dixon, 289 Kan.
46, Syl. ¶ 7, 209 P.3d 675 [2009]).
Here, the State did not elect which overt act to rely on. So if Cottrell is correct that
alleging several overt acts creates a multiple acts problem, then a unanimity instruction
was required.
But the threshold question is whether this is a multiple acts case. To this end, we
must determine "whether jurors heard evidence of multiple acts, each of which could
have supported conviction on a charged crime," which is a question of law subject to
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unlimited review. State v. De La Torre, 300 Kan. 591, 596, 331 P.3d 815 (2014). More
precisely, we must determine whether a jury instruction alleging several overt acts in
furtherance of a conspiracy creates a multiple acts problem and thus requires a unanimity
instruction.
"'Multiple acts' are legally and factually separate incidents that independently
satisfy the elements of the charged offense." 300 Kan. at 598. The charged offense at
issue is conspiracy. K.S.A. 2012 Supp. 21-5302(a) states:
"A conspiracy is an agreement with another person to commit a crime or to assist
in committing a crime. No person may be convicted of a conspiracy unless an overt act in
furtherance of such conspiracy is alleged and proved to have been committed by such
person or by a co-conspirator."
Thus, conspiracy contains two elements: "'''(1) An agreement between two or more
persons to commit or assist in committing a crime and (2) the commission by one or more
of the conspirators of an overt act in furtherance of the object of the conspiracy.'''" State
v. Butler, 307 Kan. 831, 842, 416 P.3d 116 (2018) (quoting State v. Hill, 252 Kan. 637,
641, 847 P.2d 1267 [1993]).
As the Court of Appeals aptly said, "In a conspiracy case, it is the agreement that
is the crux of the offense." Cottrell, 53 Kan. App. 2d at 431; see Sacharoff, Conspiracy
as Contract, 50 U. Cal. Davis L. Rev. 405, 408 (2016) ("Sometimes the conspirators fail
in their objective, or change their minds; courts still punish them because the agreement
itself is the harm and deserves punishment."). Indeed, "[a] single conspiracy can last for
years, with many of its substantive offenses being completed during that time" but only
the single agreement may be punished. State v. Pham, 281 Kan. 1227, 1254, 136 P.3d
919 (2006). As we explained in Pham,
8
'"A single continuing conspiracy, however diverse its objects, cannot be broken down
into component sub-agreements for the purpose of multiple punishments or multiple
prosecutions. When separate conspiracies are alleged and both are founded on a general
conspiracy statute, the relevant inquiry is whether there existed more than one agreement
to perform an illegal act or acts.'" 281 Kan. at 1256 (quoting State v. Mincey, 265 Kan.
257, 268, 963 P.2d 403 [1998]).
Put simply, a single conspiracy consists of one agreement, and a defendant may
only be convicted of conspiracy if the State alleges and proves that the defendant or a co-
conspirator committed an overt act in furtherance of that agreement. See K.S.A. 2012
Supp. 21-5302(a); see also 15A C.J.S., Conspiracy § 146 ("The function of an overt act
requirement is simply to manifest that the conspiracy is at work."). There may be one or
many overt acts committed in furtherance of a single conspiracy. But a multiple acts
problem requires evidence of "separate incidents that independently satisfy the elements
of the charged offense." De La Torre, 300 Kan. at 598. For conspiracy, that means
multiple acts require multiple agreements. Or, to state the same principle in reverse, no
matter how many overt acts the State proved in this case, Cottrell could only ever be
convicted of one conspiracy.
The State presented arguments and evidence about one agreement between
Cottrell and Curtis: to illegally sell hydrocodone and oxycodone to Padron on June 5,
2013. The jury instruction on conspiracy listed that same agreement. Thus, we agree with
the Court of Appeals when it held:
"[A] single agreement to commit several crimes constitutes one conspiracy. By the same
reasoning, multiple agreements to commit separate crimes constitute multiple
conspiracies. Here, there was only one conspiracy alleged: the distribution of controlled
substances. Because none of the overt acts charged in furtherance of that conspiracy are
factually and legally sufficient to constitute a crime in and of themselves, there is no risk
here that the jury could have found multiple conspiracies. . . .
9
". . . Because the facts of this case support only one conspiracy to distribute
controlled substances, a multiple acts instruction would not have been proper." Cottrell,
53 Kan. App. 2d at 431-32.
See State v. Enriquez, 46 Kan. App. 2d 765, 775-76, 266 P.3d 579 (2011) ("the overt acts
of a conspiracy do not present a multiple acts situation").
A jury instruction that lists several overt acts in furtherance of a conspiracy does not
create alternative means for the crime of conspiracy.
Cottrell argues that if the overt acts alleged in the jury instruction are not multiple
acts, then they must be alternative means for the crime of conspiracy. And if the overt
acts are alternative means, then the State failed to produce sufficient evidence to support
each one. The State does not contest that the overt acts listed in the instruction are
alternative means. Instead, the State argues that sufficient evidence supports each
alternative means, and any error was harmless.
"'In an alternative means case, where a single offense may be committed in more
than one way, there must be jury unanimity as to guilt for the single crime charged.
Unanimity is not required, however, as to the means by which the crime was committed
so long as substantial evidence supports each alternative means. In reviewing an
alternative means case, a court must determine whether a rational trier of fact could have
found each means of committing the crime proved beyond a reasonable doubt.'" Bailey,
292 Kan. at 458 (quoting Dixon, 289 Kan. 46, Syl. ¶ 7).
In other words, in "an alternative means case, we must conduct what we have termed a
'super-sufficiency' analysis. That is, sufficient evidence must support each of the
alternative means charged to ensure that the verdict is unanimous as to guilt." Butler, 307
Kan. at 841.
10
As before, we begin with the threshold question: Are the overt acts listed in the
jury instruction alternative means for the crime of conspiracy? See Butler, 307 Kan. at
841 ("[W]e must initially consider whether the jury was ever presented with an
alternative means case."). This is a question of statutory interpretation subject to
unlimited review. 307 Kan. at 841. And despite the State's admission that the jury
instructions presented alternative means, we will independently determine questions of
law. See State v. Hankins, 304 Kan. 226, 232, 372 P.3d 1124 (2016) (holding that this
court will not permit parties to stipulate to legal conclusions from admitted facts).
"Alternative means issues arise when the statute and any instructions that
incorporate it list distinct alternatives for a material element of the crime." State v. Sasser,
305 Kan. 1231, 1239, 391 P.3d 698 (2017). In recent years, we clarified that
"[a]lternative means are legislatively determined, distinct, material elements of a crime,
as opposed to legislative descriptions of the material elements or of the factual
circumstances that would prove the crime." State v. Foster, 298 Kan. 348, Syl. ¶ 4, 312
P.3d 364 (2013); see State v. Brown, 295 Kan. 181, 184, 284 P.3d 977 (2012). For
example, the inherently dangerous felonies that support the charge of felony murder are
alternative means. See Bailey, 292 Kan. at 458; K.S.A. 2018 Supp. 21-5402(c) (listing the
crimes that qualify as an "inherently dangerous felony").
Recently in Butler, we held the plain language of the conspiracy statute does not
set forth alternative means for committing an overt act. 307 Kan. at 842 (citing Cottrell,
53 Kan. App. 2d at 433). Thus, the Cottrell panel was correct on this point. But even so,
this case presents a question that Butler declined to address: whether a jury instruction
that lists more than one overt act in furtherance of a conspiracy creates an alternative
means problem.
In Butler, the instruction given for conspiracy to commit aggravated robbery
alleged a "string of connected events" that amounted to one overt act: "'The defendant or
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any party to the agreement acted in furtherance of the agreement by discussing and
planning the aggravated robbery, arrived at the location, and carried out the plan.'" 307
Kan. at 842, 844. Butler argued this instruction presented the jury with three alternative
means for committing the overt act. He based this argument on two cases, Enriquez and
State v. Smith, 268 Kan. 222, 993 P.2d 1213 (1999).
In Enriquez, the jury instruction for conspiracy to commit first-degree murder
alleged three distinct overt acts, separated by the disjunctive "or":
"a. Purchasing tools at two locations in Dodge City, Kansas; or
"b. Requesting additional members to be part of the plan; or
"c. That the defendant, Noel Trejo-Medrano, and Joel Mendoza-Soto traveled from
Nebraska to Dodge City, Kansas, to put the plan into place[.]" 46 Kan. App. 2d at
772-73.
The Enriquez panel held that this instruction created three alternative means for the overt
act in furtherance of the conspiracy. 46 Kan. App. 2d 765, Syl. ¶ 7.
In Smith, "we expressed concern when a jury is given a list of possible overt
acts—any of which may satisfy the overt act requirement—'a danger could exist that the
jury was not unanimous as to the act or acts it relied upon for the conviction.'" (Emphasis
added.) Butler, 307 Kan. at 844 (quoting Smith, 268 Kan. at 230). But ultimately, "we
found no error where the jurors were individually polled, and the jury affirmed it was
unanimous as to the particular overt act." Butler, 307 Kan. at 844; see Smith, 268 Kan.
at 230.
Butler reasoned that Enriquez and Smith were distinguishable because in those
cases the conspiracy instruction listed several overt acts, but in Butler, the instruction
12
listed a sequence of events that constituted one overt act. Thus, we held that the single
overt act listed in the Butler instruction did not constitute alternative means. 307 Kan. at
843-44. In so holding, we explained that "resolving Butler's claim does not necessitate an
analysis of whether Enriquez and Smith remain valid after our decision in Brown, 295
Kan. 181, in which we established a statutory test for determining if alternative means
existed. Butler's case presents a distinguishable set of facts." 307 Kan. at 844.
Today's case presents a fact pattern like Enriquez and Smith, where the jury
instruction listed more than one overt act in furtherance of the conspiracy. Thus, we must
pick up where Butler left off and determine whether the instruction here creates
alternative means for the overt act in furtherance of the conspiracy, even though the
conspiracy statute does not. We note, however, that Smith's cautionary comment about
the possible "danger" of giving the jury "a list of possible overt acts" is not controlling—
Smith did not rule on the merits of the question at hand. Smith, 268 Kan. at 230.
Recent caselaw distinguishes alternative means—which arise when a statute's
plain language lists distinct alternatives for a material element of the crime—and mere
descriptions of a material element or factual circumstance. When we explained this
distinction in Brown, we noted that descriptions of an element in a jury instruction do not
create alternative means:
"The listing of alternative distinct, material elements, when incorporated into an elements
instruction, creates an alternative means issue demanding super-sufficiency of the
evidence. But merely describing a material element or a factual circumstance that would
prove the crime does not create alternative means, even if the description is included in a
jury instruction." (Emphasis added.) 295 Kan. at 194.
Indeed, descriptions of material elements "are secondary matters—options within a
means—that do not, even if included in a jury instruction, raise a sufficiency issue that
13
requires a court to examine whether the option is supported by evidence." (Emphasis
added.) 295 Kan. at 200.
Following Brown, we affirm that only the language of a statute can create
alternative means for a crime. If the statute lists "alternative, distinct, material elements"
of a crime, then it creates alternative means. 295 Kan. at 194. But a jury instruction that
lists descriptions of how a material element might be satisfied does not, on its own, create
alternative means. To hold otherwise would permit a jury instruction to override
legislative intent and effectively revise the criminal code.
Thus, we affirm that the conspiracy statute does not set forth alternative means for
committing an overt act. Butler, 307 Kan. at 842; see K.S.A. 2018 Supp. 21-5302(a). We
also overrule Enriquez and hold that a jury instruction listing more than one overt act in
furtherance of a conspiracy does not create alternative means. Instead, such an instruction
merely describes the factual scenarios that could prove the material element of an overt
act.
Cottrell invited any jury instruction error.
Next, Cottrell argues the district court erred when it instructed the jury that
"knowingly" was the culpable mental state for distribution of a controlled substance.
Instead, he claims the correct culpable mental state is "intentionally," based on State v.
Hall, No. 109,602, 2014 WL 3843085 (Kan. App. 2014) (unpublished opinion). The
State counters that Cottrell's argument is precluded by invited error. The Court of
Appeals agreed with the State, holding that Cottrell invited any error because he "not
only appears to have submitted his written requested jury instructions including
knowingly as the mental state for the distribution charge but also affirmatively asked the
district court to issue that instruction at the jury instruction conference." Cottrell, 53 Kan.
App. 2d at 440-41.
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We review alleged jury instruction errors through a multistep process. See, e.g.,
State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). The first step is
reviewability, a concept that includes invited error. State v. Fleming, 308 Kan. 689, 695,
423 P.3d 506 (2018). "Whether the invited error doctrine applies is a question of law over
which this court has unlimited review." Sasser, 305 Kan. at 1235.
The record indicates that both parties submitted proposed jury instructions to the
district court, but Cottrell's are oddly missing from the record. The record also does not
show when Cottrell submitted his proposed instructions. That said, we conclude the
record is sufficient to determine whether Cottrell invited any error because defense
counsel discussed his proposed instruction on distribution of a controlled substance—and
asked for "knowingly" to be the culpable mental state—at the jury instruction conference:
"THE COURT: I'm just looking at your instructions you've identified, actually in
your instructions–
"[DEFENSE COUNSEL]: I've put intentionally as it relates to conspiracy to commit,
and I had a typo, should be conspiracy to commit distribution of a controlled substance.
So I specifically listed that crime, which is an intentional crime. Then down below
knowingly, as it relates to distribution of the controlled substance, the State must prove
the defendant committed the crimes knowingly."
Defense counsel stuck to that request throughout the jury instruction conference.
In fact, only one dispute arose over the mental state for drug distribution—the parties
agreed that "knowingly" was the right culpable mental state, but they disagreed where to
put "knowingly" in the instructions. Defense counsel wanted to place "knowingly" within
the definition of distribution of a controlled substance; the prosecutor wanted to place
"knowingly" in a stand-alone culpable mental state instruction. In the end, the final
instruction read: "Knowingly: As it relates to Distribution of a Controlled Substance, the
State must prove the defendant committed the crimes knowingly. A defendant acts
15
knowingly when the defendant is aware that his conduct was reasonably certain to cause
the result complained about by the State." Defense counsel said he did not object to the
final instruction.
We recently clarified that
"the invited-error doctrine does not automatically apply every time a party requests an
instruction at trial but then, on appeal, claims the district court erred by giving it. Instead,
appellate courts must engage in a searching analysis of the facts of the case to determine
whether the complaining party truly invited the error." Fleming, 308 Kan. at 689-90.
There is no "bright-line rule" for applying the invited error doctrine, and context
matters. Sasser, 305 Kan. at 1235; see Fleming, 308 Kan. at 702 (explaining that "the
nature of the error . . . and the circumstances surrounding the drafting of instructions" are
critical to an invited error analysis). On the one hand, "the mere failure to object to a
proposed instruction at the instructions conference does not trigger the doctrine." 308
Kan. at 702. "On the other hand, when a defendant actively pursues what is later argued
to be an error, then the doctrine most certainly applies." Sasser, 305 Kan. at 1236. The
fact that a defendant submitted a proposed instruction before trial does not prevent
applying the invited error doctrine if the error "was as obvious before trial as after trial."
Fleming, 308 Kan. at 703.
We conclude that Cottrell invited any error because he "actively pursue[d]" an
instruction for distribution of a controlled substance that included a knowing culpable
mental state. See Sasser, 305 Kan. at 1236. Cottrell was unwavering in this request, and
any error "was as obvious before trial as after trial." See Fleming, 308 Kan. at 703. Not to
mention, defense counsel stated on the record that he did not object to the final
instruction. On these facts, we hold invited error precludes us from reaching the merits of
Cottrell's jury instruction challenge.
16
The district court did not err when it denied Cottrell's motion for acquittal.
Lastly, Cottrell argues the district court erred when it denied his motion for
acquittal because the State presented insufficient evidence that he (1) agreed with Curtis
to distribute the controlled substances and (2) knowingly distributed them. A challenge to
a denial of a motion for acquittal is, at the core, a challenge to the sufficiency of the
evidence. See State v. Raskie, 293 Kan. 906, 919, 269 P.3d 1268 (2012). Thus, we must
determine whether, in a light most favorable to the prosecution, a rational fact-finder
could have found Cottrell guilty beyond a reasonable doubt. See 293 Kan. at 919-20. We
do not reweigh evidence, assess witness credibility, or resolve conflicting evidence.
293 Kan. at 920.
First, Cottrell argues the State failed to prove that he agreed with Curtis to
distribute drugs because it presented no evidence about his communications with Curtis
about the events at QuikTrip. Indeed, the only direct evidence about their
communications that day came from Cottrell's testimony, and Cottrell painted his
participation in an innocent light. In effect, Cottrell claims direct evidence needed to
prove the agreement occurred. But on the contrary, "[t]he agreement element of a
conspiracy charge need not be proved by direct evidence; it may be supported by
circumstantial evidence." State v. Davis, 284 Kan. 728, 737, 163 P.3d 1224 (2007); see,
e.g., State v. Morton, 217 Kan. 642, 643, 538 P.2d 675 (1975) ("It is well established in
this jurisdiction that a conviction of even the gravest offense may be sustained by
circumstantial evidence."). Or, put differently, the "meeting of the minds" required for
conspiracy "may be expressed or implied from the acts of the parties." Smith, 268 Kan. at
228. And the State presented sufficient circumstantial evidence that Cottrell agreed with
Curtis to distribute the drugs.
For example, Curtis texted Padron that her father was the one with the product;
that she was waiting on him to complete the transaction; that she brought in the clientele
17
but he ran the business. These texts suggest that Cottrell ran an illegal drug business with
Curtis' assistance, and the two worked together to complete the sale to Padron. But
Cottrell's actions speak loudly as well. At QuikTrip, officers observed Cottrell speak with
Curtis directly before and after the sale. Cottrell personally exchanged the pill bottle for
cash, which was caught on video. And finally, Cottrell described the pill bottle as an
"8 and 20" and referenced his "daughter" during the exchange, suggesting the two
coordinated the sale together. Viewed in a light most favorable to the State, this evidence
is sufficient to prove that Cottrell agreed with Curtis to distribute the drugs.
Second, Cottrell argues that he did not knowingly distribute controlled substances.
In support, he points to his own testimony that he did not understand what was happening
and did not know what was in the bottle. We assume without deciding that knowingly is
the required culpable mental state for this crime. And in the context of controlled
substances, we have recently clarified that a knowing culpable mental state can be
disproved if a mistake of fact is shown. State v. Rizal, 309 Kan. __, __ P.3d __ (No.
114,635, this day decided), slip op. at 12 (holding "a mistake of fact about the nature of a
controlled substance—meaning the actual belief that it is 'some other lawful substance'
that is not controlled, Rosa, 304 Kan. at 437—could negate the knowledge requirement").
Essentially, Cottrell argues the jury should have given his testimony—that he did
not know what was in the bottle or that it contained a controlled substance—more
credibility and discounted the significant circumstantial evidence against him. But, of
course, we do not reweigh credibility. Raskie, 293 Kan. at 920. And the circumstantial
evidence supporting his knowledge that he was distributing controlled substances was
significant. For instance, Curtis' texts about the quantity of drugs and her father's
involvement in the sale, combined with Cottrell's comment to Padron about the
"8 and 20" bottle, suggest that Cottrell understood the sale involved a controlled
substance. Not to mention, a reasonable juror could find that Cottrell's story was
farfetched, to say the least—that he blindly exchanged a pill bottle (called an "8 and 20")
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for cash in a stranger's car at a gas station and had no idea the bottle contained illicit
drugs. Given this, a reasonable jury could have weighed the conflicting testimonies and
found the knowledge requirement met beyond a reasonable doubt.
Affirmed.
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