                                         No. 114,635

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      STATE OF KANSAS,
                                          Appellee,

                                               v.

                                     RONALD COTTRELL,
                                        Appellant.


                               SYLLABUS BY THE COURT

1.
       Unanimity instruction errors are reviewed under a three-part framework. First, the
reviewing court determines whether a multiple acts case is presented. The threshold
question is whether jurors heard evidence of multiple acts, each of which could have
supported conviction on a charged crime. If the case is a multiple acts case, the next
question is whether error was committed. To avoid error, the State must have informed
the jury which act to rely upon or the district court must have instructed the jury to agree
on the specific act for each charge. Failure to elect or instruct is error. Finally, the court
determines whether the error was reversible or harmless.


2.
       In a multiple acts case, the State alleges several factually and legally distinct acts,
any one of which could constitute the crime charged. Incidents are factually separate
when independent criminal acts have occurred at different times or different locations or
when a criminal act is motivated by a fresh impulse. The fundamental concern in multiple
acts cases is that the jury may not unanimously agree on the same criminal act underlying
the single charge.




                                               1
3.
       The allegation of several overt acts in furtherance of one single charge of
conspiracy does not present a multiple acts case.


4.
       Alternative means are the materially different ways of committing a particular
crime based on the elements of the offense or the statutory definition. When criminal
statutes create two or more distinct ways of committing an offense, those ways reflect
alternative means. Other criminal statutes establish only one way to commit an offense,
although they may use synonymous or redundant terms to define the prohibited conduct.


5.
       Courts look to the plain language of the statute first to determine whether the
legislature intended to create alternative means of committing the crime.


6.
       Overt acts presented to a jury that are alleged to have been committed in
furtherance of one conspiracy under K.S.A. 2015 Supp. 21-5302(a) are not alternative
means requiring jury unanimity.


7.
       When sufficiency of the evidence is challenged in a criminal case, the standard of
review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh the
evidence, resolve evidentiary conflicts, or make witness credibility determinations.




                                             2
8.
        When a jury instruction issue is raised for the first time on appeal, the standard of
review is whether the instruction is clearly erroneous. To establish that an instruction is
clearly erroneous, this court must first determine whether error was made. The party
claiming error must demonstrate that the proposed instruction would have been both
legally and factually appropriate based on an unlimited review of the entire record. If this
court determines that error was made, it must determine whether reversal is proper. The
inquiry is whether this court is firmly convinced a jury would have reached a different
verdict had the instruction been given. The burden is on the defendant to establish the
degree of prejudice necessary for reversal.


9.
        Where the definition of a crime does not prescribe a mental state, it is nevertheless
required unless the definition plainly dispenses with it.


10.
        A defendant cannot challenge an instruction, even as clearly erroneous, when there
has been an on-the-record agreement to the wording of the instruction at trial.


        Appeal from Sedgwick District Court; ROBB W. RUMSEY, judge. Opinion filed January 27, 2017.
Affirmed.


        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.




                                                     3
       STANDRIDGE, 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.


                                            FACTS

       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


                                              4
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


                                              5
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.


                                              ANALYSIS

1. Unanimity

       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:


               "A person may be convicted of a conspiracy only if some act in furtherance of
       the agreement is proved to have been committed. An act in furtherance of the agreement
       is any act knowingly committed by a member of the conspiracy in an effort to effect or
       accomplish an object or purpose of the conspiracy. The act itself need not be criminal in



                                                   6
       nature. It must, however, be an act which follows and tends towards the accomplishment
       of the object of the conspiracy. The act may be committed by a conspirator alone and it is
       not necessary that the other conspirator be present at the time the act is committed. Proof
       of only one act is sufficient.
               "The following is a list of the alleged acts in furtherance of the agreement to be
       considered:
               "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 Padron[] 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."


       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.


                                                    7
       a. Multiple acts

       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:


               "Unanimity instruction errors are reviewed under a three-part framework. First,
       the reviewing court determines whether a multiple acts case is presented. The threshold
       question is whether jurors heard evidence of multiple acts, each of which could have
       supported conviction on a charged crime. [Citation omitted.] This is a question of law
       subject to unlimited review. [Citation omitted.] If the case is a multiple acts case, the next
       question is whether error was committed. To avoid error, the State must have informed
       the jury which act to rely upon or the district court must have instructed the jury to agree
       on the specific act for each charge. Failure to elect or instruct is error. Finally, the court
       determines whether the error was reversible or harmless. [Citation omitted.]" State v. De
       La Torre, 300 Kan. 591, 596, 331 P.3d 815 (2014).


       Therefore, we first must decide whether multiple acts were presented in this case.
In a multiple acts case, the State alleges several factually and legally distinct acts, any
one of which could constitute the crime charged. State v. Soto, 299 Kan. 102, 110, 322
P.3d 334 (2014). Incidents are factually separate when independent criminal acts have
occurred at different times or different locations or when a criminal act is motivated by a
fresh impulse. De La Torre, 300 Kan. at 598. The fundamental concern in multiple acts
cases is the possibility that the jury may not unanimously agree on the same criminal act

                                                      8
underlying the single charge. See State v. Voyles, 284 Kan. 239, 248, 160 P.3d 794
(2007).


       We begin by noting that a panel of this court previously has held that the
allegation of several overt acts in furtherance of a conspiracy does not present a multiple
acts case. See State v. Enriquez, 46 Kan. App. 2d 765, 775-76, 266 P.3d 579 (2011)
(allegation of several overt acts in furtherance of conspiracy does not present multiple
acts case because it is not necessary for overt acts in conspiracy case to be illegal or
chargeable as crimes). Nevertheless, Cottrell argues some of the five overt acts occurred
at different times and locations in his case; thus, they constitute multiple acts. That the
overt acts alleged are factually distinct, however, does not make them multiple acts. In a
conspiracy case, it is the agreement that is the crux of the offense. Thus, 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. See, e.g., State v. Zabrinas, 271 Kan. 422, 439,
24 P.3d 77 (2001) (multiple acts must be "factually and legally sufficient to satisfy all of
the elements of the crime").


       Moreover, had the State charged Cottrell with multiple counts of conspiracy based
on the overt acts, any convictions stemming from the charges would have been
multiplicitous. See, e.g., State v. Williams, 303 Kan. 750, 756, 368 P.3d 1065 (2016)
("Had the State charged Williams in multiple counts based on his single threat against
multiple victims, any convictions stemming from the charges would have been
multiplicitous. Williams made one threat and committed one crime; the Court of Appeals
erred in identifying this case as one involving multiple acts."); State v. Pham, 281 Kan.
1227, Syl. ¶ 20, 136 P.3d 919 (2006) (conspiracy to commit kidnapping and conspiracy


                                              9
to commit aggravated burglary were multiplicitous where only single continuing
conspiracy, i.e., one agreement to rob victims in their home). Because the facts of this
case support only one conspiracy to distribute controlled substances, a multiple acts
instruction would not have been proper.


       b. Alternative means

       Given the unique manner in which the issue of alternative means was raised on
appeal here, we find it helpful to provide a brief procedural summary. At trial, defense
counsel asked the district court to provide an instruction to the jury requiring it to agree
on one specific overt act in order to convict on the charge of conspiracy to distribute
controlled substances. The State opposed the request, arguing that Enriquez, 46 Kan.
App. 2d at 775-76, stood for the legal proposition that providing the jury with a factual
basis for two or more overt acts in furtherance of a conspiracy is not a multiple acts
situation requiring a unanimity instruction but instead is a situation that presents the jury
with alternative means of how the conspiracy was committed. As we know from the
preceding section, the district court ultimately denied Cottrell's request for the unanimity
instruction.


       Based on the arguments in his brief, it appears Cottrell believes the district court's
decision to deny his request for a unanimity instruction necessarily incorporated Enriquez
and found, as a matter of law, that the five overt acts alleged here represented alternative
means of committing the crime of conspiracy. Based on this belief, Cottrell argues the
district court erroneously relied on Enriquez to find the State only had to present
substantial evidence of each of the overt acts (alternative means) alleged instead of the
higher standard of proof—beyond a reasonable doubt—of each of the overt acts alleged.
Before addressing Cottrell's argument, we first must determine whether the five overt acts
alleged here represent alternative means of committing the crime of conspiracy to
distribute controlled substances.


                                              10
       Alternative means are the materially different ways of committing a particular
crime based on the elements of the offense or the statutory definition. "When criminal
statutes create two or more distinct ways of committing an offense, those ways reflect
alternative means. Other criminal statutes establish only one way to commit an offense,
although they may use synonymous or redundant terms to define the prohibited conduct."
State v. Schreiner, 46 Kan. App. 2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011). "'Whether a
statute creates alternative means of committing a crime is a matter of statutory
interpretation and construction and is a question of law subject to de novo review on
appeal.' [Citation omitted.]" State v. Castleberry, 301 Kan. 170, 181, 339 P.3d 795
(2014).


       Our Supreme Court established the framework for alternative means analysis in
State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012). Brown instructs us to look at the
plain language of the statute first to determine whether the legislature intended to create
alternative means of committing the crime. 295 Kan. at 193. The Kansas statute on
conspiracy defines it as "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." K.S.A. 2015 Supp. 21-5302(a). A plain reading of the
language in the conspiracy statute reflects that the legislature did not intend to create
more than one distinct way in which a defendant can commit an overt act. In fact, the
statute does not even use synonymous or redundant terms to define various ways in
which an "overt act" can be committed. The statute only requires that the State allege and
then prove that the defendant or any coconspirator commit an overt act in furtherance of
the conspiracy. Thus, the State can submit to the jury one factual circumstance to prove
commission of an overt act or, as here, five distinct factual circumstances to prove that an
overt act was committed. The essential element of the offense that must be proved is the
commission of an overt act in furtherance of the conspiracy, which does not present an
alternative means situation. If the legislature had intended to create more than one distinct


                                              11
way in which a defendant can commit an overt act in furtherance of the conspiracy
alleged, the legislature would have provided at least some language in the statute to carry
out that objective. Again, there is no such language in the conspiracy statute.


       For the reasons stated above, we hold overt acts presented to a jury that are alleged
to have been committed in furtherance of one conspiracy under K.S.A. 2015 Supp. 21-
5302(a) are not alternative means requiring jury unanimity; instead, presenting more than
one overt act to the jury represents a preliminary factual issue for it to resolve: Did the
State allege and prove that the defendant or a coconspirator committed an overt act in
furtherance of the conspiracy alleged? See K.S.A. 2015 Supp. 21-5302(a) ("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."). The
statute requires nothing more.


       We readily acknowledge that our decision today directly conflicts with the
published decision from our court in Enriquez. 46 Kan. App. 2d at 776 (allegation of
several overt acts in furtherance of conspiracy presents alternative means requiring jury
unanimity on one overt act or finding that a rational trier of fact could have found beyond
a reasonable doubt that each overt act included in the instructions occurred). But we are
not bound by the decision of a previous panel of our court. State v. Urban, 291 Kan. 214,
223, 239 P.3d 837 (2010). "While we must carefully consider each precedent cited to us,
we also must uphold our duty to correctly determine the law in each case that comes
before us. In doing so, we sometimes find that we must respectfully disagree with the
opinion of another panel." Uhlmann v. Richardson, 48 Kan. App. 2d 1, 13, 287 P.3d 287
(2012).


       Because we have held overt acts presented to a jury that are alleged to have been
committed in furtherance of one conspiracy under K.S.A. 2015 Supp. 21-5302(a) are not



                                             12
alternative means requiring jury unanimity, it is unnecessary to address Cottrell's
argument that the district court erred in conducting an alternative means analysis.


2. Sufficiency of the evidence

       Cottrell next argues that the district court erred in denying his motion for directed
verdict. Specifically, Cottrell argues that there was insufficient evidence to establish he
made an agreement with another person to distribute controlled substances, which is the
first element of his conviction of conspiracy. Cottrell also argues there was insufficient
evidence to establish he had the requisite knowledge to support his conviction for
distribution of controlled substances.


               "When sufficiency of the evidence is challenged in a criminal case, the standard
       of review is whether, after reviewing all the evidence in a light most favorable to the
       prosecution, the appellate court is convinced a rational factfinder could have found the
       defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
       resolve evidentiary conflicts, or make witness credibility determinations. [Citation
       omitted.]" State v. Remmert, 298 Kan. 621, 629, 316 P.3d 154 (2014).


       a. Conspiracy to commit drug distribution

       Cottrell claims the State did not present sufficient evidence of an agreement
between him and Curtis, which is an essential element of the conspiracy charge. See
K.S.A. 2015 Supp. 21-5302(a) (State must show defendant entered into agreement with
another person to commit crime or assist in committing crime). In support of this claim,
Cottrell contends there was no evidence of the content of any communications between
him and Curtis, noting specifically that there were no text messages between Cottrell and
Curtis produced. While Cottrell admitted that he spoke with Curtis by phone on the day
of the incident, he reiterates the explanation in his trial testimony that he understood he
went to QuikTrip to receive a partial payment of money Curtis owed him. Finally,



                                                   13
Cottrell argues the fact that police observed Curtis and Cottrell together is insufficient, on
its own, to support the conclusion that they made an agreement to distribute controlled
substances.


       The existence of an agreement to commit conspiracy need not be proved directly
but may be inferred from circumstantial evidence and "'sufficiently significant
circumstances.'" See State v. Sharp, 289 Kan. 72, 104, 210 P.3d 590 (2009); see also
State v. Swafford, 257 Kan. 1023, 1040, 897 P.2d 1027 (1995). As was discussed above,
the State provided ample evidence for a rational factfinder to conclude that Cottrell and
Curtis formed an agreement to distribute controlled substances. Both in setting up the
initial prescription narcotics sale and after that deal, Curtis told Detective Padron that her
father was the one who supplied the product to the customers she communicated with. At
the time of the transaction, Curtis again told Padron that she was waiting for Cottrell to
show up at the QuikTrip; when he did arrive, Cottrell met with Curtis before he got in
Padron's vehicle and exchanged the pill bottle for cash. Finally, officers observed Cottrell
talking with Curtis at his truck after the sale was completed. There is substantial evidence
that Curtis and Cottrell formed an agreement to sell illegal narcotics to Padron.


       b. Distribution of a controlled substance

       The district court's jury instruction regarding the two counts of distribution of
controlled substances required the jurors to find Cottrell acted "knowingly" in order to
convict. Nevertheless, Cottrell argues there was insufficient evidence that he acted with
the requisite knowledge. In support of his position, Cottrell cites only to his trial
testimony stating that he was unaware of the nature of the transaction in which he
participated. Cottrell testified at trial that he went to QuikTrip simply to accept a partial
repayment that Curtis owed him. But when Cottrell arrived Curtis handed him a pill
bottle, which she told him was an "8 and 20," and instructed him to get into Detective
Padron's car and exchange the pill bottle for cash. He contends that the evidence is


                                              14
insufficient to prove he knew exactly what was going on and therefore the jury could not
have found he acted knowingly.


       However, the jury also heard testimony from Detective Padron describing
Cottrell's participation in the sale, saw photos and watched the video in which Cottrell
exchanged the pill bottle for cash, and read the text messages between Curtis and Padron
representing that Cottrell was the source of the pills and thus a knowledgeable participant
in the transaction. The jury weighed the evidence and determined the credibility of the
witnesses. The jury was not bound to accept any one party's version of the events
described. Given the jury ultimately convicted Cottrell of distribution of oxycodone and
hydrocodone, we presume the jury believed the State's evidence and thus had drawn from
that conclusion all reasonable inferences favorable to the State. State v. Raskie, 293 Kan.
906, 920, 269 P.3d 1268 (2012). Cottrell essentially asks this court to reweigh the
evidence and come to a different conclusion based on his version of the events. It is not
the function of this court to reweigh evidence, resolve evidentiary conflicts, or make
witness credibility determinations. State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328
(2013). The evidence, when viewed in the light most favorable to the prosecution, was
sufficient for a rational juror to find Cottrell guilty of distribution of controlled
substances beyond a reasonable doubt.


3. Knowingly

       In his last argument on appeal, Cottrell argues for the first time that the district
court erred in instructing the jury that the mens rea for the distribution of controlled
substances charges was knowingly. Cottrell contends the jury was required under Kansas
law to find that he acted intentionally and that the improper instruction is reversible error.


       When a jury instruction issue is raised for the first time on appeal, the standard of
review is whether the instruction is clearly erroneous. K.S.A. 2015 Supp. 22-3414(3);


                                               15
State v. Herbel, 296 Kan. 1101, Syl. ¶ 7, 299 P.3d 292 (2013); State v. Williams, 295
Kan. 506, 510, 286 P.3d 195 (2012). To establish that an instruction is clearly erroneous,
this court must first determine whether error was made. The party claiming error must
demonstrate that the proposed instruction would have been both legally and factually
appropriate, based on an unlimited review of the entire record. If this court determines
that error was made, it must determine whether reversal is proper. The inquiry is whether
this court is firmly convinced a jury would have reached a different verdict had the
instruction been given. The burden is on the defendant to establish the degree of
prejudice necessary for reversal. 295 Kan. at 515-16.


       Unlawful distribution of a controlled substance, as defined in K.S.A. 2015 Supp.
21-5705, does not indicate the mental state required for the crime. The Kansas Criminal
Code requires that, where the definition of a crime does not prescribe a mental state, it is
nevertheless required unless the definition plainly dispenses with it. K.S.A. 2015 Supp.
21-5202(d). The parties each submitted proposed jury instructions and discussed the
mental state requirement for the distribution charge at the jury instruction conference.
The district court ultimately gave the following instruction based on PIK Crim. 4th
52.010: "As it relates to Distribution of a Controlled Substance, the State must prove the
defendant committed the crimes knowingly. A defendant acts knowingly when the
defendant is aware that his conduct was reasonably certain to cause the result complained
about by the State."


       Cottrell argues for the first time on appeal that the district court should have
instructed the jury that the requisite mental state for distribution of a controlled substance
was intentional, citing State v. Hall, No. 109,602, 2014 WL 3843085 (Kan. App. 2014)
(unpublished opinion), rev. denied 302 Kan. 1015 (2015). He claims that the court's
instruction of knowingly—a lesser mens rea requirement—was therefore in error because
an essential element of the crime was not proved.



                                              16
         However, the Hall court did not hold that intentional was the required mental state
for distribution of a controlled substance. That case actually stated that where the
defendant agrees with a jury instruction on the record, the defendant invites error and
may not later challenge that instruction. 2014 WL 3843085, at *5. There, Hall was
charged with intentional distribution of hydrocodone. Based on the charge, Hall argued
that the jury instruction for distribution—that conviction was proper if Hall acted
"intentionally, knowingly, or recklessly"—was overbroad. 2014 WL 3843085, at *3, 5.
This court looked to the discussion at the jury instruction conference and held that
defense counsel agreed on the record to the broader instruction and therefore invited
error:


                 "At the court's instruction conference at the close of the evidence at trial, . . . the
         following exchange took place:
                          '[PROSECUTOR]: . . . [A]s to the distribution of a controlled substance,
                 that PIK instruction is silent as to the express. Does not expressly state mental
                 state. In my review of the revised PIK 4th edition is that when the instruction as
                 to the specific crime is silent as to the culpable mental state, that all three mental
                 states should be given. It can be proven either by reckless actions, knowing
                 actions, or intentional actions.
                          'THE COURT: Okay. So we do have a conflict between the parties as to
                 certainly [PIK Crim. 4th] 52.01[0]. The only one asking for or suggesting [PIK
                 Crim. 4th] 52.300 was the State, and you are suggesting it needs to be the broader
                 instruction that includes all three?
                          '[PROSECUTOR]: It does as to the distribution of a controlled
                 substance. . . .
                          '[DEFENSE COUNSEL]: Your Honor, I wouldn't necessarily disagree
                 with the characterization of the—of Count Two, the instruction regarding
                 distribution. . . .'
                 "After further discussion, . . . the court turned to Instruction No. 6, which dealt
         with the three culpable mental states for distribution of a controlled substance.
                          'THE COURT: . . . And I believe, [Defense counsel], did you object to
                 that? I believe you did.



                                                        17
                      '[DEFENSE COUNSEL]: I did not, actually, Your Honor.
                      'THE COURT: Okay. Do you think that's correct, then?
                      '[DEFENSE COUNSEL]: I think it is. . . .
                      'THE COURT: Okay.
                      ....
                      'THE COURT: . . . Number 6, then, is the State's proposal for
              distribution of controlled substance is intentionally, knowingly, or recklessly.'"
              Hall, 2014 WL 3843085, at *4-5.


       The Hall court therefore held that because Hall's counsel told the court the jury
instruction was correct, he abandoned his earlier position that intentional was the
appropriate mental state. 2014 WL 3843085, at *5. The court cited State v. Peppers, 294
Kan. 377, 393, 276 P.3d 148 (2012), which held that "a defendant cannot challenge an
instruction, even as clearly erroneous under K.S.A. 22-3414(3), when there has been an
on-the-record agreement to the wording of the instruction at trial." This is a proposition
that has been long recited by our courts. See, e.g., State v. Miller, 293 Kan. 535, 554, 264
P.3d 461 (2011) (party may not invite error and then complain of that error as ground for
reversing); State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011) (when district court
gives defendant's requested instruction to jury, defendant cannot complain the requested
instruction was error on appeal); State v. Hargrove, 48 Kan. App. 2d 522, 531, 293 P.3d
787 (2013) (party cannot complain about ruling it invited court to make and ask appellate
court to reverse simply because party thinks differently on appeal).


       Here, the record does not include Cottrell's requested jury instructions, but his
attorney's comments at the jury instruction conference indicate that in his written
submission, he requested that the mental state for distribution of a controlled substance be
knowingly. The only contested issue at the conference was whether there should be a
separate instruction defining all mental states, or whether the instructions should be
targeted to the separate charges. Defense counsel argued for the latter position, requesting




                                                  18
that the conspiracy charge include the mental state intentionally and the distribution of a
controlled substance include the mental state knowingly:


               "THE COURT: . . . What [defense counsel is] asking for, he's indicating that
       intentionally deals with conspiracy to commit, conspiracy to commit a distribution of a
       controlled substance, while knowingly deals with distribution of a controlled substance.
               ....
               "THE COURT: Well, [prosecutor] and [defense counsel], it would appear
       perhaps that the better language would be that a defendant acts knowingly when the
       defendant is aware his conduct was reasonably certain to cause the result complained
       about by the State. Do you object to that language?
               "[DEFENSE COUNSEL]: I don't object to that language, but I object to the fact
       it's not specifically targeted towards crimes that are—
               "THE COURT: Oh, if I—and I appreciate that. As it relates to distribution of a
       controlled substance, the State must prove that the defendant committed the crimes
       knowingly and then with that language.
               "[DEFENSE COUNSEL]: Right. I don't have an objection to that."


       Cottrell 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. Like in
Hall, Cottrell may not invite the court to issue an instruction and then later challenge that
instruction as erroneous. Thus, we find no error in the district court's jury instructions.


       Affirmed.




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