State v. Cottrell
| Decision Date | 19 July 2019 |
| Docket Number | No. 114,635,114,635 |
| Citation | 445 P.3d 1132 |
| Parties | STATE of Kansas, Appellee, v. Ronald COTTRELL, Appellant. |
| Court | Kansas Supreme Court |
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.
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.
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 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.
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 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:
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.
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, 390 P.3d 44. 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, 390 P.3d 44. We granted Cottrell's petition to review each of these holdings.
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.
He...
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