State v. Cottrell
| Decision Date | 27 January 2017 |
| Docket Number | No. 114,635,114,635 |
| Citation | 53 Kan.App.2d 425,390 P.3d 44 |
| Parties | STATE of Kansas, Appellee, v. Ronald COTTRELL, Appellant. |
| Court | Kansas Court of Appeals |
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Malone, C.J., Standridge, J., and Hebert, S.J.
Ronald Cottrell appeals his convictions for unlawful distribution of controlled substances and conspiracy to distribute controlled substances. He argues that the district court erred in three respects: by failing to issue a unanimity instruction on the conspiracy charge; by failing to grant his directed verdict based on insufficiency of the evidence on all charges; and by issuing an improper jury instruction with regard to the mental state for the distribution charge. Finding no error, we affirm.
In June 2013, Detective Eduardo Padron of the Wichita Police Department initiated an undercover narcotics investigation after receiving confidential information that Jennifer Curtis was selling prescription narcotic drugs. Padron text messaged Curtis to inquire if he could buy prescription narcotics from her. Curtis replied that her father "is the one with the product" and asked Padron what he wanted to purchase. Padron and Curtis ultimately agreed that Padron would purchase 8 oxycodone pills and 20 hydrocodone pills in exchange for $350.
Curtis text messaged Detective Padron on the afternoon of June 5, 2013, that "[h]e's got yours ready" and arranged a location for the exchange. They agreed to meet at a QuikTrip near Curtis' house. Padron arrived in an unmarked vehicle with a hidden camera installed in the back to record the transaction. Six or seven additional officers were in the area to monitor and conduct surveillance in case anything went awry, including another detective who took still photographs of the transaction.
Before the planned meeting, Detective Padron looked up Curtis' phone number to verify it was associated with her. Padron also located a photograph of Curtis so that he would recognize her when he saw her. When Padron arrived at the QuikTrip, he called Curtis and observed a white female answer the phone; he noted that she was with two unidentified males. After this phone call, Padron waited for several minutes, but Curtis never approached Padron's car. Curtis then texted him that she was "[s]till waiting on my pops," which Padron understood to mean her father.
About 20 minutes after arriving at the QuikTrip, Detective Padron observed a blue pickup arrive at the QuikTrip and saw Curtis approach the truck. Curtis called Padron and asked him if he would move his car further south; when Padron refused, he heard a male voice in the background say, "[F]uck it, let's just do it here." Curtis got in the truck and Padron saw her talking to the driver. Padron then watched as Cottrell got out of the truck from the driver's side and approach his vehicle. Curtis stayed by the passenger side of the truck. At this point, Cottrell got in the passenger side of Padron's car, handed Padron the pill bottle, took the $350 cash from Padron, and walked back to his truck. The video camera in Padron's car recorded the interaction, during which Cottrell stated, "I don't usually meet people," and referred to Curtis as his "daughter." Cottrell returned to the truck, and Padron left the QuikTrip. After Padron left the QuikTrip, Curtis and Cottrell continued talking at the truck for 5 to 10 minutes.
Detective Padron contacted Curtis at later dates to attempt to purchase more oxycodone from her. Padron specifically asked Curtis to let him know when she had the oxycodone in her possession. In their text message exchange, Curtis told Padron that "[m]y dad wont [sic ] lemme that cuz its [sic ] his business I just bring in the clientel [sic ] I handle customers only no money no merch." Despite later text message exchanges, no further deals were arranged between Curtis and Padron.
At trial, Cottrell testified he was completely unaware that the exchange in which he participated in Detective Padron's car was for illegal prescription narcotic drugs. He explained that Curtis had been living with his son before his son passed away. Cottrell testified he helped Curtis pay for household bills and food. He said Curtis called him on June 5, 2013, and told him she had $50 for him as a partial repayment. Based on what she said, he left the job site where he worked as a home remodeler and met Curtis at the QuikTrip. Cottrell testified that when he arrived, Curtis told him if he wanted the money, he had to give Padron the pill bottle, which he said Curtis told him was called an "8 and 20." Cottrell said he was unaware of the nature of the transaction but completed it because he needed the money. He later conceded, however, that he did not keep any of the money from the transaction.
The jury unanimously found Cottrell guilty of distribution of hydrocodone, distribution of oxycodone, and conspiracy to commit distribution of a controlled substance. Cottrell filed a posttrial motion for a new trial, through which he renewed an earlier motion for judgment of acquittal, which challenged only the sufficiency of the evidence. The district court denied the motion for new trial or judgment of acquittal and sentenced Cottrell to 68 months in prison and 36 months' postrelease supervision.
Cottrell claims the district court erred in failing to give the jury a unanimity instruction on the conspiracy charge. To prove conspiracy, the State must establish (1) that the defendant entered into an agreement with another person to commit a crime or to assist in committing a crime and (2) that an overt act in furtherance of such conspiracy was committed by the defendant or a coconspirator. K.S.A. 2015 Supp. 21–5302(a). Relevant to the claim of error here, the district court provided the following instruction related to the overt acts alleged in this case to have been committed in furtherance of the conspiracy to distribute controlled substances:
In support of his claim that the district court should have given the jury a unanimity instruction relating to this instruction, Cottrell argues: (a) the State alleged five separate and distinct overt acts to support the conspiracy to distribute controlled substances charge, but the State failed to elect which specific act it was relying on before submitting the case to the jury and the court failed to instruct the jury it must unanimously agree on one specific overt act to support the conviction; and alternatively, (b) the district court instructed the jury on five alternative means of committing conspiracy to distribute controlled substances but the State failed to present sufficient evidence to prove each of these alternative means beyond a reasonable doubt. We address each of these arguments in turn.
Because the State alleged several overt acts—and any one of the acts could have supported the conspiracy—Cottrell argues the State was required to elect the act upon which it relied to support the charge, and the district court was required to instruct the jury that it must be unanimous on which act the defendant committed. Cottrell contends that the court's failure to grant his request to provide the jury with a unanimity instruction for multiple acts is reversible error. But because multiple overt acts in furtherance of a conspiracy are not multiple acts under Kansas law, we find no error in the district court's decision to deny Cottrell's request for a unanimity instruction.
On appeal, this court reviews the denial of a unanimity instruction as follows:
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State v. Butler
...2012 Supp. 21-5302, we conclude the statute does not set forth alternative means for committing an overt act. See State v. Cottrell , 53 Kan. App. 2d 425, 433, 390 P.3d 44 ("A plain reading of the language in the conspiracy statute reflects that the legislature did not intend to create more......
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State v. Cottrell
...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 al......
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State v. Johnson
...to de novo review on appeal.’ [Citation omitted.]" State v. Castleberry , 301 Kan. 170, 181, 339 P.3d 795 (2014) ; State v. Cottrell , 53 Kan. App. 2d 425, 433, 390 P.3d 44, rev. granted 306 Kan. 1322 (2017). The alternative-means doctrine is defined as "[t]he principle that when a crime mi......
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