The State did not specify which cocaine—that in Allen's pocket, or that in the upstairs bedroom—served as the basis for the possession element of possession with intent to sell. In closing argument, the State urged the jury to find that the cocaine in the bedroom belonged to Allen. The State also asked the jury to find that the cocaine in Allen's pocket belonged to Allen. The State told the jury, "But if you take those three rocks [in the pocket], plus all the 21 rocks upstairs, we believe the evidence is overwhelming that this defendant possessed it and intended to sell each of those rocks to somebody else." Allen presented no testimony, but he argued to the jury that it could reasonably conclude that the cocaine in the bedroom belonged to Cardenas and not to Allen. Allen did not object to the instructions as given.The COA had held that prior unanimity cases involving possession charges had been overruled by later "course of conduct" cases. The KSC disagreed:
This conclusion by the Court of Appeals is incorrect. There is no single test for whether conduct constitutes one act or separate and distinct multiple acts. A test that applies to kidnapping may not apply to possessing a controlled substance. It makes little sense in some contexts to speak of a "fresh impulse," especially when part of the alleged criminal conduct consists of several ongoing actions. The critical issue is unanimity of the verdict.
The KSC went on to describe the potential unanimity problem in Mr. Allen's case:
The KSC concluded that because it was "certainly plausible that jurors would not have agreed on the element of possession," the failure to give a unanimity instruction was clearly erroneous and required reversal.
Ten of the jurors may have believed Allen owned the cocaine in both his pocket and the bedroom and intended to sell all of it. One juror may have believed Allen owned the cocaine in his pocket but did not intend to sell it and also have believed he owned the cocaine in the bedroom and intended to sell it. And one juror may have believed he did not own the cocaine in the bedroom but he owned and intended to sell the cocaine in his pocket. This scenario presents a unanimity problem: the jurors did not agree on the possession element of the possession with intent to sell.
We do not, of course, know what motivated specific individual jurors to reach a guilty verdict. They may have been unanimous in their factual conclusion, but they may not have been. That was the problem that the court addressed in [State v. Kinmon, 26 Kan. App. 2d 677, 995 P.2d 876 (1999)], and the Kinmon analysis remains applicable to a situation such as Allen's, in which a jury could find either, or both, actual or constructive possession.