1 No

. 11 4 , 635

IN THE COURT OF APPE ALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appell ee ,

v.

R ONALD C OTTRELL , Appell ant

.

SYLLABUS BY THE COUR T

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

supp orted 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
d etermines 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 mult iple acts cases is that the jury may not unanimously agree on the same criminal act underlying the single charge.2

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
alte rnative 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
l egislature 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 ju r y 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 cou ld have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh the evidence, resolve evidentiary conflicts, or make witness credibility determinations

.3

8

. When a jury instruction issue is raised for the first time on appe al, 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 instructi on 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

. W here the definition of a crime does not prescribe a mental state, it is neverthele ss 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 D ist rict C ourt; R OBB W. R UMSEY , 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 M ALONE , C.J., S TANDRIDGE , J., and H EBERT , S.J.4

S TANDRIDGE , 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 co nspiracy 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.

F ACTS

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 in quire 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 hydroco done pills in ex change 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 unm arked 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 t he 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 QuikTr ip, he called Curtis and observed a white female answer the phone; he noted that she was with two
uni dentified males. After this phone call, Padron waited for several minutes, but Curtis5

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 i f 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 tr uck 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 Qui kTrip, Curtis and Cottrell continued talking at the truck f or 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
furth er deal s 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 li ving 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, h e left the job site where he worked as a home remodeler and met Curtis at the6

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." Cot trell 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 fr om the transaction.

The jury unanimously found Cottrell guilty of distribution of hydrocodone, distribution of oxycodone, and conspiracy to commit distribution of a con trolled
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 suff iciency 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 s upervision.

A NALYSIS

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 com mitted by the defendant or a co conspirator. K.S.A. 2015 Supp. 21

- 5302(a). Relevant to the claim of error here, t he district court provided the following instruction
related to the overt acts al leged in this case to have bee n 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 furthe rance 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 in7

nature. It must, however, be an act which follows and te nds 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 follo wing 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 tra nsaction 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 JENN IFER M. CURTIS.
"5. JENNIFER M. CURTIS met with RONALD D. COTTRELL, JR. at his
vehicle after the brokered transaction with Officer Pa dron was completed."

In support of his claim that the district court should have given the jury a unanimity instruction re lating to this instruction
, Cottrell argue s: ( 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
submit ting 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 conspir acy 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.8

a. Multiple a cts

B ecause 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 up on 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 n ot multiple acts under Kansas law, we find no error in the d istrict court's
de cision 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

sup ported 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. [C itation omitted.]" State v. De
La Torre , 300 Kan. 591, 596, 331 P.3d 815 (2014).

Therefore, we first must d ecide whether multiple acts were presented in this case

. In a multiple acts case, the State alleges several factually and legally distinct acts, an y 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 moti vated 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 act9

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 severa l 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 crime s)

. Nevertheless, Cottrell argues some of the five overt acts occurred
at different times and locations in his case; thus, they constitute multiple act s. 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 consp iracy 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 ag ainst 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 Ka n. 1227, Syl. ¶ 20, 136 P.3d 919 (2006) (conspiracy to commit kidnapping and conspiracy10

to commit aggravated burglary were multiplicitous where only single continuing conspiracy, i.e. , one agreemen t 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 m eans

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, d efense
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

co ntrolled 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 act s in furtherance of a con spiracy is not a multiple a cts 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 believe s 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 represent ed 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

.11

Alternative means are the materially different ways of committing a particular
crime based on the elements of the offen se 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 o r 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 i s 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. T he 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

- cons pirator. " K.S.A. 2015 Supp. 21

- 5302(a). A plain reading of th e 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 conspir acy. 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 . Th e 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 distinct12

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 ov ert act s presented to a jury th at 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 f a c t ual issue for it to resolve: Did the State allege and prove that the defendant or a co conspirator 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 furt herance 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 hav e 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 e ach 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. A pp. 2d 1, 13, 287 P.3d 287 (2012).

Because we have held ov ert act s presented to a jury that ar e alleged to have been
committed in furtherance of one conspiracy under K.S.A. 2015 Supp. 21

- 5302(a) are not13

alternative means requiring jury unanimity, it is un necessary 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 wa s 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 reviewin g 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 c ommit drug d istribution

Cottrell claims the State did not present sufficient evidence of an agreement
between h im 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,14

Cottrell argues the fact that police observed Curtis and Cottrell together is insuffi cient , on its own, to support the conclusion that they made an agreement to distribute controlled
subs tances.

The existence of an agreement to commit conspir acy need not be proved directly but may be inferred from circumstantial evidence and "'sufficientl y 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 cust omers 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 tha t 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 simp ly to accept a partial repayment that Curtis owed him . B ut 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 exch ange the pill bottle for cash. He contends that the evidence is15

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, sa w 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 ju ry 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 th e jury believed the State's evidence and thus had draw n from
that conclusion all reasonable inference s 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 com e 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, Cottrel l 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 intentio nally 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);16

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 th at 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 c ourt 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

a bout 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 f or 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 re quirement

— was therefore in error because an essential element of the crime was not proved.17

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 a rgued 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 th at 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 distr ibution 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 menta l 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 o ne 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]: You r 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, [ D efense counsel], did you object to that? I believe you did.18 '[DEFENSE COUNSEL]: I did not, actually, Your Honor. 'THE COURT: Okay. Do you think that's correct, then? '[D EFENSE 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 Hal l 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
th at 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 in structions should be targeted to the separate charges. Defense counsel argued for the latter position, requesting19

that the conspiracy charge include the mental state intentionally and the distribution of a
controlled substance include the mental state know ingly:

"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 complai ned 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 dis tribution 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 obj ection to that."

Cottrell not only appears to have submitted his writ ten 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 cour t to issue an instruction and then later challenge that
instruction as erroneous. Thus, we find no error in the district court's jury instructions.

Affirm ed

.