BY THE COURT
Multiple acts are legally and factually separate incidents
that each independently satisfy the elements of the charged
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
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.
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
of the judgment of the Court of Appeals in 53 Kan.App.2d 425,
390 P.3d 44 (2017).
from Sedgwick District Court; Robb W. Rumsey, judge.
Kittel, of Kansas Appellate Defender Office, was on the brief
J. Gillett, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
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.
and Procedural Background
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
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.
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."
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.
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
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.
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
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.
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
"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 ...