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A single conspiracy consists of one agreement, and a defendant may only be convicted of conspiracy if the State alleges and proves that the defendant or a co-conspirator committed an overt act in furtherance of that agreement. Kan. Stat. Ann. § 21-5302(a) (Supp. 2012). There may be one or many overt acts committed in furtherance of a single conspiracy. But a multiple acts problem requires evidence of separate incidents that independently satisfy the elements of the charged offense. For conspiracy, that means multiple acts require multiple agreements.
Defendant Ronald Cottrell sold prescription narcotics to an undercover detective in a QuikTrip parking lot in Sedgwick County. A jury convicted him of distributing of a controlled substance and conspiring to distribute a controlled substance. On appeal, defendant argued (1) The district court erred when it failed to give a unanimity instruction because the State alleged multiple overt acts in furtherance of the conspiracy; (2) alternatively, the overt acts alleged were alternative means to commit the crime of conspiracy, and the State failed to produce sufficient evidence to support each one; (3) the district court erred when it instructed the jury that "knowingly" was the culpable mental state for distribution of a controlled substance; and (4) the district court erred when it denied his motion for judgment of acquittal because the evidence was insufficient to support the charges. The Court of Appeals affirmed. Defendant challenged the decision.
Did the district court err in failing to give unanimity instruction?
The state supreme court affirmed the judgment, holding that no unanimity instruction was required because the State presented evidence of only one conspiracy and the overt acts supporting that conspiracy were not separate crimes. Moreover, a jury instruction listing more than one overt act in furtherance of a conspiracy did not create alternative means, because such an instruction merely described the factual scenarios that could prove the material element of an overt act. According to the Court, defendant invited error on the issue of culpable mental state for distribution of a controlled substance, because he actively pursued a jury instruction that included a knowing culpable mental state.