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No. 103,936 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. JACOB WALDRUP, Appellant.

SYLLABUS BY THE COURT 1. In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.

2. The two underlying purposes of the alternative means doctrine are to prevent jury confusion about what criminal conduct has to be proved beyond a reasonable doubt and to prevent the State from charging every available means authorized under a single criminal statute, lumping them together, and then leaving it to the jury to pick freely among the various means in order to obtain a unanimous verdict.

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3. In a prosecution of the defendant for sale of cocaine, the district court's definitional jury instruction of the term "sale" did not create alternative means of committing the crime.

4. The statutory right to a speedy trial of an inmate who is confined in a penal or correctional institution in this state excluding a federal penitentiary is governed by the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq. The statutory right to a speedy trial of an inmate who is confined in a penal or correctional institution in another state or in a federal penitentiary is governed by the Agreement on Detainers, K.S.A. 22-4401 et seq.

5. There are two distinct speedy trial deadlines under the Agreement on Detainers, depending on who initiates the inmate's return to the jurisdiction with pending charges. The 180-day speedy trial provision contained in Article III is controlling where a prisoner requests disposition of the charges pending against him or her in another state. The 120day provision contained in Article IV controls where a prisoner is returned for prosecution upon the request of the prosecuting authorities in the state which filed the detainer against the prisoner.

6. Under either Article III or Article IV of the Agreement on Detainers, any continuance granted for good cause shown in open court with the prisoner or his or her counsel present extends the time limitation for bringing the prisoner to trial.

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7. Under the facts of this case, the State did not violate the defendant's speedy trial rights under the Agreement on Detainers.

8. Whether a defendant's constitutional right to a speedy trial has been violated is a question of law over which an appellate court has unlimited review.

9. In Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the United States Supreme Court listed factors courts should consider when determining whether the state or federal government violated a defendant's constitutional right to a speedy trial. These factors are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his or her right, and (4) prejudice to the defendant. None of the factors is controlling; rather, the factors must be considered together with any other relevant circumstances.

10. The law is well settled that a cautionary instruction on the testimony of an informant is only required when the informant's testimony is substantially uncorroborated and provides the sole basis for the defendant's conviction.

11. For purposes of discrediting a witness, drug-use evidence is admissible to the extent it shows the witness was under the influence of drugs at the time of the occurrence as to which the witness testifies or at the time of trial. It is also admissible to the extent that it shows the witness' mind, memory, or powers of observation were affected by the habit.

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12. The Kansas Supreme Court has set out a three-part test to determine when a multiple acts situation has occurred such that the jury must agree on the same underlying criminal act. First, the court must determine if the case truly involves multiple acts, i.e., whether the defendant's conduct was part of one act or represents multiple acts which are separate and distinct from each other. Second, the court must consider whether error occurred, i.e., whether there was a failure by the State to elect an act or a failure by the trial court to instruct. Third, the court must determine whether the error is reversible.

13. The Kansas Supreme Court has identified four factors useful for determining if a case truly involves multiple acts: (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.

14. Even if an individual error is insufficient to support reversal, the cumulative effect of multiple errors may be so great as to require reversal. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.

Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed October 21, 2011. Affirmed.

Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant.

Jim Garner, of Lawrence, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

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Before MALONE, P.J., MARQUARDT and HILL, JJ.

MALONE, J.: Jacob Waldrup appeals his convictions of two counts of sale of cocaine, third offense. Waldrup claims: (1) Sale of cocaine is an alternative means crime based on the definition of sale given to the jury, and there was insufficient evidence to find him guilty of each alternative means of committing the crime; (2) the State violated his speedy trial rights under the Agreement on Detainers, K.S.A. 22-4401 et seq.; (3) the State violated his constitutional right to a speedy trial; (4) the district court erred in refusing to give a jury instruction on the testimony of a confidential informant; (5) the district court erred in limiting his cross-examination of the confidential informant; (6) the district court erred in failing to give a unanimity instruction in a multiple acts case; and (7) he was denied a fair trial based on cumulative error. We find each of Waldrup's claims to be unavailing, and we affirm the judgment of the district court.

On or about June 24, 2007, Cynthia Roubison called the Douglas County Sheriff's Office and spoke with Deputy Chris Thomas, who was assigned to the Drug Enforcement Unit (DEU), which works to regulate drug trafficking by using either undercover officers or confidential informants. Roubison, a drug user, said she was trying to clean up her life and that she wanted to help the Sheriff's department catch drug dealers. On June 29, 2007, Roubison met Thomas and Lawrence Police Officer Justin Rhoades at the Investigations and Training Center (ITC) in Lawrence. At the meeting, Roubison told the officers about her relationship with a man called "Big J." Roubison indicated she had purchased drugs from "Big J." in the past, and she had a phone number to contact him. Rhoades was aware that Waldrup was known as "Big J.," so he showed Roubison a picture of Waldrup and she identified him as "Big J."

That same day, Roubison signed a "Cooperating Individual Agreement" that stated, in part, that in consideration for her cooperation with law enforcement, she might receive compensation or reimbursement. Thomas later testified that Roubison received 5

certain benefits from the DEU in exchange for her cooperation, including $60 to have Roubison's car towed after her tires were slashed, $38.18 toward new tires, and $10.73 in cell phone charges. Also, Thomas talked to the Lawrence city prosecutor about an outstanding municipal warrant on Roubison, which Thomas believed was later dismissed.

On July 6, 2007, at around 2 p.m., Roubison met with Thomas at the ITC. Lawrence Police Detective Amy Price searched Roubison to ensure she did not have any drugs or money in her possession. Thomas attached a recording device to Roubison's cell phone, and Roubison also wore a recording device on her body. Roubison called Waldrup on her cell phone and arranged to meet him that day at the Fast Lane gas station in Lawrence to buy crack cocaine. Thomas, acting as an undercover officer, accompanied Roubison to the arranged sale. When Thomas and Roubison arrived at the gas station, Waldrup was waiting in the passenger seat of a car driven by an unknown female. Roubison got into the car with Waldrup, where she remained for approximately 30 seconds. She then came back to Thomas' car, handed Thomas a packet of crack cocaine, and she and Thomas drove back to the ITC. Thomas placed the cocaine in a padlocked storage locker, and Price again searched Roubison to make sure she did not have any other drugs or money.

Later that same day, Roubison called Waldrup a second time, arranging to meet him to purchase more cocaine. The parties ultimately agreed to meet at the Pool Room in Lawrence. Thomas and Roubison drove to the Pool Room and within a few minutes of their arrival, Waldrup arrived in a car driven by a female later identified as Stephanie Jones. Roubison and Thomas walked over to the other car, where Thomas talked to Jones while Roubison spoke with Waldrup. Thomas heard Waldrup tell Roubison that he did not have a container in which to place the cocaine, so Roubison went back to Thomas' car and removed the cellophane from a package of cigarettes. Roubison handed the cellophane and the money to Thomas, who handed it all to Waldrup. Waldrup took the

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money, put the drugs in the cellophane, and gave the drugs to Thomas. Roubison and Thomas then returned to the ITC, and Thomas put the drugs into a storage locker.

Waldrup was arrested October 26, 2007, on charges filed in case 2007 CR 1552. That case was subsequently dismissed without prejudice. On January 23, 2008, the State filed an information in case 2008 CR 107 charging Waldrup with one count of selling, delivering, or distributing cocaine within 1000 feet of school property; one count of possession of cocaine; and two counts of unlawfully arranging sales or purchases of controlled substances using a communication facility. The Douglas County District Court issued a warrant for Waldrup's arrest on January 28, 2008.

Meanwhile, on January 14, 2008, Waldrup waived extradition to Missouri to face charges there. On September 9, 2008, a jury in Missouri convicted Waldrup of possession of a controlled substance, and Waldrup was sentenced to 12 years' imprisonment. Waldrup was returned to Kansas to address his charges here on April 9, 2009.

The State filed amended informations, ultimately charging Waldrup with two counts of selling, delivering, or distributing cocaine, third offense, and two counts of unlawfully arranging sales or purchases of controlled substances using a communication facility. The case was scheduled for jury trial on September 23, 2009, but that proceeding ended in a mistrial. The State subsequently dismissed the two counts of unlawfully arranging sales or purchases of controlled substances using a communication facility.

The jury trial commenced October 28, 2009. Roubison and Thomas testified for the State about the two cocaine purchases on July 6, 2007. The audio recordings of both sales were played for the jury. Jones also testified for the State and confirmed the drug sale at the Pool Room. Waldrup did not testify, but he called one witness who testified that the cell phone number Roubison had given Thomas was not Waldrup's cell phone number. After hearing the evidence, the jury convicted Waldrup of two counts of sale of 7

cocaine. On November 30, 2009, the district court sentenced Waldrup to a controlling term of 162 months' imprisonment, based on Waldrup's prior convictions, to run consecutive to the Missouri sentence. Waldrup timely appealed his convictions.

ALTERNATIVE MEANS TO COMMIT SALE OF COCAINE Waldrup first argues that sale of cocaine is an alternative means crime and the State failed to present sufficient evidence of each alternative means of committing the crime. Our Supreme Court has stated:

"'"In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]"' [Citation omitted.]" State v. Wright, 290 Kan. 194, 202, 224 P.3d 1159 (2010).

Before we address whether there was sufficient evidence to prove the alternative means, however, we must determine whether this case truly presents an issue of alternative means. If the offense with which Waldrup was charged and convicted, sale of cocaine, cannot be committed in more than one way, jury unanimity is not at issue and alternative means analysis is inapplicable. The issue involves statutory interpretation. Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).

The statute under which Waldrup was charged, K.S.A. 2006 Supp. 65-4161(a), makes it unlawful to "sell, offer for sale or have in such person's possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; or dispense any 8

opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107 and amendments thereto." The State acknowledges that this statute contains alternative means of committing the crime. However, the jury did not have the option to convict Waldrup of multiple alternative means under K.S.A. 2006 Supp. 65-4161. At trial, the district court gave the jury the following instruction:

"To establish this charge [of unlawfully selling cocaine], each of the following claims must be proved: "1. That the defendant sold cocaine; "2. That the defendant did so intentionally; and "3. That this act occurred on or about the 6th day of July, 2007, in Douglas County, Kansas."

The instruction gave the jury the option of convicting Waldrup only of the sale of cocaine, as opposed to other alternative means under the statute. Therefore, there was jury unanimity on the issue of Waldrup's guilt of sale of cocaine as to the elements of the crime. Courts have generally looked to the statutory language of the crime to determine whether a statute creates alternative means for committing a crime. See, e.g., Wright, 290 Kan. at 206-07 (finding the alternative means for committing rape after an examination of the statutory language); State v. Quinones, 42 Kan. App. 2d 48, 54, 208 P.3d 335 (2009), rev. denied 290 Kan. 1101 (2010) (finding that "the plain language" of the statute in question provided the crime might be committed by alternative means).

However, Waldrup's alternative means argument goes beyond the statutory language of K.S.A. 2006 Supp. 65-4161. Here, the district court gave the jury a separate instruction on the definition of "sale" that stated, in part: "A sale under the Uniform Controlled Substances Act has a broader meaning than 'sale' usually has. Sale under the Act means selling for money, and also includes barter, exchange, or gift, or an offer to do any of these things." Waldrup asserts that the phrase "barter, exchange, or gift, or an offer to do any of these things" in this definitional jury instruction created alternative means of 9

committing the unlawful sale of cocaine. Because the State did not provide evidence that Waldrup bartered for, made an exchange for, or gifted the cocaine to either Roubison or Thomas in either transaction, Waldrup argues that his convictions must be vacated.

The State first characterizes Waldrup's argument as a challenge to the jury instruction defining "sale" and argues that because the instruction is a fair, proper, and long-approved statement of the law, there was no error in giving the instruction. This argument misses the point, however, as Waldrup is not challenging the giving of the jury instruction. Waldrup is presenting an alternative means argument based on the definitional instruction of the term "sale," and he is arguing there was insufficient evidence presented at trial to find him guilty beyond a reasonable doubt of each alternative means of committing the crime. As to Waldrup's argument that the definitional instruction creates an alternative means issue, the State asserts that looking beyond the strict elements of the crime set forth in K.S.A. 2006 Supp. 65-4161(a) is inappropriate.

Whether a definitional jury instruction can create alternative means of committing a crime is an issue of first impression in Kansas. In State v. Aguirre, 45 Kan. App. 2d 141, 245 P.3d 1 (2011), pet. for rev. granted in part September 21, 2011, the defendant was charged with aggravated intimidation of a victim. At trial, the district court instructed the jury on the elements of the crime, including the element that the defendant acted knowingly and maliciously. The district court also provided the jury with the statutory definition of the term "maliciously" as follows: "'As used in this instruction, maliciously means with an intent to vex, annoy, harm or injure in any way another person, or with an intent to thwart or interfere in any manner with the orderly administration of justice.'" 45 Kan. App. 2d at 147. Among other issues on appeal, the defendant raised an alternative means challenge based on the definition of the term "maliciously," contending that aggravated intimidation of a victim can be committed either (1) by acting with the intent to vex, annoy, harm, or injure the victim or (2) by acting with the intent to thwart or 10

interfere with the orderly administration of justice. This court did not squarely address the issue and ultimately determined that "[e]ven if we were to consider the description of malice in the statute as describing alternative means of committing the crime, there was substantial evidence to support both alternative means." 45 Kan. App. 2d at 150.

Although there is no Kansas case directly on point, the Supreme Court of Washington addressed whether definitional jury instructions can create alternative means of committing a crime in State v. Smith, 159 Wash. 2d 778, 154 P.3d 873 (2007). It is important to note that current alternative means analysis in Kansas is largely based on that of Washington. See State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]). In Smith, the defendant was charged with three counts of first-degree assault with a firearm. At the close of the evidence, the jury was instructed on the crime of assault in the first degree and the lesser included offense of second-degree assault. The jury was also given a separate instruction that set forth the common-law definitions of assault as follows:
"'An assault is an intentional touching, striking, cutting, or shooting of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching, striking, cutting, or shooting is offensive, if the touching, striking, cutting, or shooting would offend an ordinary person who is not unduly sensitive. "'An assault is also an act, with unlawful force, done with the intent to inflict bodily injury upon another, tending, but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted. "'An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.' [Citation omitted.]" 159 Wash. 2d at 781-82.

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The jury convicted the defendant of three counts of second-degree assault with a deadly weapon. The defendant appealed her convictions, claiming the State failed to present substantial evidence as to each definition of assault for each victim and, thus, her constitutional right to jury unanimity was compromised. Division Two of the Washington Court of Appeals affirmed, "holding that the common law assault definitions do not create alternative means of commission," and the defendant petitioned for review by the Washington Supreme Court. 159 Wash. 2d at 782-83.

The Washington Supreme Court repeated its alternative means test, which is the same as Kansas', requiring that "substantial evidence of each of the relied-on alternative means must be presented." 159 Wash. 2d at 783; see also Wright, 290 Kan. at 202 (quoting Timley, 255 Kan. at 289). The court identified the two underlying purposes of the alternative means doctrine, which are

"to prevent jury confusion about what criminal conduct has to be proved beyond a reasonable doubt and to prevent the State from charging every available means authorized under a single criminal statute, lumping them together, and then leaving it to the jury to pick freely among the various means in order to obtain a unanimous verdict. [Citations omitted.]" 159 Wash. 2d at 789.

The court framed the defendant's issue as "whether the common law definitions of assault, when submitted to a jury in a single and separate definitional instruction, constitute alternative means of committing the crime of assault in whichever degree charged." 159 Wash. 2d at 783-84. The Smith court determined the answer was no, relying in large part on a long line of Washington cases holding that alternative means analysis should not be extended to include definitional jury instructions. 159 Wash. 2d at 785. Rather, the court stated that definitional instructions "merely elaborate on and clarify" the terms used in the statutes that define the crimes. 159 Wash. 2d at 786. The court stated the definitions merely served to define an element of the crime charged and "thereby give rise to a 'means within a means' scenario" which "does not trigger jury 12

unanimity protections." 159 Wash. 2d at 787; see State v. Linehan, 147 Wash. 2d 638, 646-51, 56 P.3d 542 (2002) (providing a thorough discussion of the "'means within a means' scenario" which does not trigger alternative means analysis under Washington law).

Smith was a five-four decision. The Smith majority emphasized the fact that the jury instruction in question set forth the "three common law definitions of assault." (Emphasis added.) 159 Wash. 2d at 780. Throughout the opinion, the majority referred to the jury instructions as "common law definitions," even framing the issue as narrowly as "whether the common law definitions of assault . . . constitute alternative means of committing the crime of assault in whichever degree charged." 159 Wash. 2d at 783-84. The majority stated that it limited the alternative means doctrine to those means provided by the assault statutes in the absence of legislative intent to the contrary. 159 Wash. 2d at 789-90.

Because the Smith majority emphasized that the definitions of assault were based on common-law definitions, we will examine the source of the district court's definitional instruction of the term "sale" provided to Waldrup's jury. The definition given by the district court was from PIK Crim. 3d 67.13-A, which stated, in part, that "[a] sale under the Uniform Controlled Substances Act has a broader meaning than 'sale' usually has. Sale under the Act means selling for money, and also includes barter, exchange, or gift, or an offer to do any of these things." The Notes on Use indicate that the definition is for crimes committed prior to July 1, 2009, which includes Waldrup's case. The PIK manual cites State v. Nix, 215 Kan. 880, 882, 529 P.2d 147 (1974), as authority for the instruction.

It appears from a reading of Nix that the definition of "sale" used in the PIK instruction came from the Uniform Narcotic Drug Act, which defined "sale" as including "barter, exchange, or gift, or offer therefor, and each such transaction made by any 13

person, whether as principal, proprietor, agent, servant, or employee. [Citations omitted.]" 215 Kan. at 882. However, the Uniform Narcotic Drug Act was repealed in 1972, and the Uniform Controlled Substances Act, K.S.A. 65-4101 et seq., was enacted, which did not define "sale." 215 Kan. at 882. The Nix court, after recognizing that the Uniform Narcotic Drug Act, including the definition of "sale" included therein, had been repealed, stated that it was "not constrained to restrict the definition." 215 Kan. at 882.

In State v. Evans, 219 Kan. 515, 518, 548 P.2d 772 (1976), our Supreme Court again approved the use of the former statutory definition, even though it was no longer part of a valid statute; see also State v. Griffin, 221 Kan. 83, 84, 558 P.2d 90 (1976) (approving the definition of "sale" based on prior case law). The Uniform Controlled Substances Act was never amended to include a statutory definition of the term "sale," and this is the Act under which Waldrup was prosecuted. In 2009, the legislature moved the Uniform Controlled Substances Act to Chapter 21 of the Kansas Statutes Annotated. See K.S.A. 2010 Supp. 21-36a01 through 21-36a17, which are applicable to crimes committed after July 1, 2009. The new statutes do not define the term "sale," but the new statutes contain a definition of the term "distribute" which incorporates the term "sale." K.S.A. 2010 Supp. 21-36a01(d). Therefore, at the time Waldrup was prosecuted, there was no codified definition of the term "sale." The definition used in the instruction at issue was based on a statutory definition that was part of a repealed statute and was subsequently approved and adopted by our Supreme Court.

The dissent in Smith agreed with the defendant that the "common law assault definitions are alternative means of committing the crime of assault."159 Wash. 2d at 795 (Bridge, J., dissenting). According to the dissent, the Smith majority disregarded the distinction between "definitions of terms (which do not create alternate means of committing an offense)" and "definitions of the crime (which do)." 159 Wash. 2d at 793. The dissent stated:

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"'[D]efinition statutes do not create additional alternative means of committing an offense.' State v. Linehan, 147 Wash. 2d 638, 646, 56 P.3d 542 (2002). Like a means within a means, definitions within definitions merely 'elaborate upon various terms or words' within a crime. [Citation omitted.] But we also recognize that statutes defining a crime do provide alternative means of committing theft. [Citation omitted.]" 159 Wash. 2d at 794 n.10.

The dissent advocated an analytical distinction between "'fundamental definitions,'" which are "those where the definition is the crime," and "'explanatory definitions,'" which are "those where the definition clarifies terminology or an element of the crime." 159 Wash. 2d at 794. Under the dissent's framework, fundamental definitions may create alternative means to commit a crime, but explanatory definitions do not. 159 Wash. 2d at 794. The dissent stated that, in this analysis, the common-law definitions of assault are fundamental definitions because "their purpose goes beyond merely providing detail for the elements of the assault." 159 Wash. 2d at 795. Rather, according to the dissent, the common-law definitions of assault "identify the very act of assault and do so in alternative ways." 159 Wash. 2d at 795.

We find the reasoning of both the Smith majority and the dissent to be persuasive. Waldrup asks this court to extend alternative means analysis to include definitional instructions and to hold that the definitional instruction of the term "sale" created alternative means of committing the crime of sale of cocaine. As the Smith majority noted, such an application of the alternative means doctrine would frustrate the underlying purposes of the doctrine. 159 Wash. 2d at 788. Here, the broad definition of the term "sale" did not reasonably confuse the jury about what criminal conduct the State had to prove in order to find Waldrup guilty of sale of cocaine. Likewise, the State did not charge Waldrup with every available means authorized under the statute, lump them together, and then leave it to the jury to pick freely among the various means in order to obtain a unanimous verdict. See 159 Wash. 2d at 789. As to the Smith majority's emphasis on the common-law definition of assault, we note there was no codified 15

definition of "sale" at the time Waldrup was prosecuted, and the definitional instruction provided to the jury by the district court was approved by Kansas case law. See Griffin, 221 Kan. at 84.

On the other hand, the Smith dissent makes a valid argument on the analytical distinction between "fundamental definitions" and "explanatory definitions." In Smith, the defendant was charged with assault with a firearm and the district court provided a definition of "assault," which constituted the crime itself. When such a fundamental definition includes alternative means of committing the crime, then each alternative means must be supported by substantial evidence to uphold a conviction. As another example, if a defendant is charged with criminal sodomy and the district court provides the jury with a definition of "sodomy" that includes alternative means of committing the crime, then each alternative means must be supported by substantial evidence to uphold the defendant's conviction of criminal sodomy.

However, in Waldrup's case, the district court's definition of the term "sale" would be more aptly categorized as an explanatory definition rather than a fundamental definition of the crime itself. The definition clarifies terminology or an element of the crime. Even under the framework of the Smith dissent, the district court's definition of the term "sale" did not create alternative means to commit a crime. Relying on the reasoning of Smith, we hold that the district court's definitional jury instruction of the term "sale" did not create alternative means of committing the crime of sale of cocaine. Accordingly, we conclude jury unanimity was not at issue and Waldrup's convictions were supported by sufficient evidence.

SPEEDY TRIAL UNDER THE AGREEMENT ON DETAINERS Next, Waldrup argues that the State violated his speedy trial rights under the Agreement on Detainers (Agreement), K.S.A. 22-4401 et seq. Waldrup makes two 16

separate arguments. First, Waldrup argues that the State violated his speedy trial rights under Article IV of the Agreement when it failed to bring him to trial within 120 days of his arrival in Kansas. Second, Waldrup argues that the State violated his speedy trial rights under Article III of the Agreement when it failed to bring him to trial within 180 days of his notice and request for final disposition. These issues require statutory interpretation. Interpretation of a statute is a question of law over which an appellate court has unlimited review. Arnett, 290 Kan. at 47.

The statutory right to a speedy trial of an inmate who is confined in a penal or correctional institution in this state excluding a federal penitentiary is governed by the Uniform Mandatory Disposition of Detainers Act (UMDDA), K.S.A. 22-4301 et seq. The statutory right to a speedy trial of an inmate who is confined in a penal or correctional institution in another state or in a federal penitentiary is governed by the Agreement. State v. Dolack, 216 Kan. 622, 633-34, 533 P.2d 1282 (1975). There are two distinct speedy trial deadlines in the Agreement, depending on who initiates the prisoner's return to the jurisdiction with pending charges.
"The 180-day speedy trial provision contained in Article III . . . is controlling where a prisoner incarcerated in a state penal institution requests disposition of the charges pending against him in another state. The 120-day provision contained in Article IV of the Agreement controls where the prisoner is returned for prosecution upon the request of the prosecuting authorities in the state which filed the detainer against the prisoner." State v. White, 234 Kan. 340, Syl.

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